NOTES 

OF 

CONSTITUTIONAL  DECISIONS: 


BEING  A  DIGEST  OF 

THE  JUDICIAL  INTERPRETATIONS 

• 

OF    THE 

CONSTITUTION    OF    THE    UNITED    STATES, 


AS    CONTAINED    IN    THE    VARIOUS 


FEDERAL  AND   STATE  REPORTS. 

witter  mty  Clauae  nf  tfye  Constitution. 

TOGETHER  WITH   AN  APPENDIX, 

CONTAINING  THE   DECLARATION    OF   INDEPENDENCE 
AND    ARTICLES   OF   CONFEDERATION. 

\  BUMP. 

UNIVERSITY 


THE 


NEW     YORK: 

BAKER,  VOORHIS    &    CO.,   PUBLISHERS, 

66  NASSAU   STREET. 

1878. 


Entered,  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-eight,  by 

ORLANDO  F.  BUMP, 

in  the  Office  of  the  Librarian  of  Congress  at  Washington. 
^  '7  6   y 


BAKER  &  GODWIN,  PRINTERS, 
25  tark  Row,  New  York, 


PREFACE. 


THIS  work  consists  of  the  Constitution  of  the  United  States, 
with  notes  under  each  clause  and  section,  referring  to  all  the 
•cases  in  which  it  has  ever  been  construed  or  applied,  whether 
the  cases  arose  in  the  Federal  or  State  courts.  Where  the 
cases,  upon  a  particular  subject,  have  been  numerous,  the 
notes  have  been  arranged  under  appropriate  subdivisions.  ^The 
practitioner  is  thus  enabled  to  tell,  at  a  glance,  whether  there 
is  any  decision  upon  the  particular  point  which  he  is  consider- 
ing. The  importance  of  the  field  covered  by  the  work  can  be 
readily  seen  by  even  a  hasty  glance  at  its  contents.  In  Ameri- 
can jurisprudence  there  is  no  field  that  is  more  prolific  of  im- 
portant questions  than  that  of  constitutional  law,  and  of  these 
the  most  important  are  those  that  pertain  to  the  Federal  Con- 
stitution. The  importance  of  the  subjects  that  are  committed 
to  the  control  of  the  National  Government,  the  nice  discrimi- 
nation between  the  powers  of  the  State  governments  and  the 
National  Government,  and  the  restrictions  that  have  been 
placed  upon  the  powers  of  both  for  the  protection  of  private 
rights,  have  given  rise  to  an  immense  amount  of  litigation, 
-and  the  establishment  of  principles  that  are  all-pervading  in 
their  consequences.  The  results  are  embodied  in  this  volume. 
They  constitute  the  permanent,  fundamental  and  supreme  law 
of  the  country.  This  law  has  been  settled  by  litigation  ex- 
tending over  a  period  of  more  than  eighty  years,  and  may  be 
regarded  as  nearly  unchangeable.  No  pains  have  been  spared 
to  make  the  work  exhaustive.  It  is  possible  that  some  cases 
may  have  been  overlooked,  but,  if  this  is  so,  it  is  not  because 
there  has  been  any  lack  of  diligence  in  hunting  for  them,  but 
because  there  is  great  difficulty  in  making  a  work  like  this 
complete. 

OKLANDO  F.  BUMP. 

BALTIMORE,  January  1st,  1878. 


TABLE    OF    CASES. 


Abbott  v.  Bayley,  287,  290. 
Abercrombie  v.  Baxter,  152. 
Ableman  v.  Booth,  263,  267,    278, 

298,311,334,335,336,359. 
Achison  v.  Huddleson,  127. 
Adams  v.  Day,  285. 
Adams  v.  Logan,  153. 
Adams  v.  Palmer,  143. 
Adams  v.  Smith,  226. 
Adams  v.  Storey,  5,  72,  155,  158,  316. 
Adams  v.  Way,  336. 
Addison  v.  Saulnier,  236. 
Agnew  v.  Platt,  162. 
Agricultural  Branch  Railroad  Co.  v. 

Winchester,  203. 
Aguirre  v.  Maxwell,  106. 
A.  &  G.  Railroad  Co.  v.  Allen,  178, 

179- 

A.  &  G.  Railroad  Co.  v.  State,  193. 
Ah  Fong,  Ex  parte,  50,  378. 
Ah  Fook,  Ex  parte,  376. 
Ahl  v.  Gleim,  90. 
Ala.  &  Fia.  Railroad  Co.  v.  Kenney, 

1 80. 
Albany   Railroad   Co.   v.  Brownell, 

191. 

Albee  v.  May,  115,  123,  139. 
Aldrich  v.  Kenney,  3,  285. 
Aldridge  v.  Tuscumbia  Railroad  Co., 

115. 

Alexander  v.  Gibson,  72,  155. 
Alexander  v.  Kilpatrick,  225. 
Alexander  v.  Railroad  Co.,  107,  237, 

239- 
Alexander  Stephens,  Ex   parte,  18, 

68,  262,  268. 
Alicia,  The,  277. 
Allen  v.  Buchanan,  163. 
Allen  v.  Colby,  89,  344. 
Allen  v.  McKeen,  127,  165,  i6£>,  187, 

1 88,  193. 

Allen  v.  Sarah,  287,  294,  350. 
Allen  v.  Shield,  225. 
Alley  v.  Denson,  153. 


Allis  v.  State  Bank,  215. 

Almy  v.  People,  235. 

Am.  Ins.  Co.  v.  Canter,  87,.  249,  262, 
269.  300,  303. 

Amy  v.  Smith,  127,  229,  291. 

Amy  Warwick,  The,  86. 

Anderson  v.  Baker,  114,  119,  363. 

Anderson  v.  Comm.,  194. 

Anderson  v.  Dunn,  n,  19. 

Anderson  v.  Wheeler,  159. 

Andrews  v.  Russell,  115,  123,  148, 

Andrews  v.  State,  343. 

Angelo  De  Giacomo,  103. 

Ankrim,  In  re,  14. 

Ann  Ryan,  The,  48,  238,  294. 

Anon.,  10,  193,  194,  211. 

Anthony  v.  Halderman,  380. 

Antoni  v.  Wright,  131,  134,  147,  172. 

Appold,  In  re,  71. 

Archy,  Ex  parte,  288. 

Armington  v,  Barnet,  179,  180. 

Armistead  v.  State,  251. 

Armstrong  v.  Commissioners,  153. 

Armstrong  v.  Jackson,  139. 

Armstrong  v.  Lecompte,  1 54. 
|  Armstrong  v.  Treasurer,  179. 
|  Aspinwall  v.  Commissioners,  205, 207. 
j  Astrom  v.  Hammond,  128,  339. 
I  Att.  Gen.  v.  Bank  of  Charlotte,  174. 

Att.  Gen.  v.  Bay  State  Mining  Co., 
291. 

Att.  Gen.  v.  Clergy  Society,  187. 

Att.    Gen.  v.   Railroad   Companies, 
171,  190,  193. 

Att.  Gen.  v.  Stevens,  52. 

Atwater  v.  Townsend,  156,  158. 

Atwater  v.  Woodbridge,  123,  174. 

Augsbury  v.  Grossman,  77. 

Augusta  v.  Earle,  364. 

Augusta  v.  Sweeny,  144. 

Augusta  Bank  v.  Augusta,  218. 

Auld  v.  Butcher,  229. 

Aurora  Turnpike  Co.  v.  Holthouse, 
168,  186,  219. 


VI 


TABLE    OF    CASES. 


Austin  v.  Boston,  326. 
Austin  v.  Sandel,  369. 
Austin  v.  State,  292. 
Avery  v.  Fox,  352,  356. 
Aycock  v.  Martin,  152,  227. 


Babcock  v.  Middleton,  137. 

Babcock  v.  Weston,  158. 

Backus  v.  Lebanon,  180. 

Bacon  v.  Howard,  286. 

Bagnell  v.  Broderick,  301. 

Bailey  v.  Gentry,  112,  120,  128,  221, 

227,  336. 

Bailey  v.  Hollister,  194. 
Bailey  v.  Maguire,  1 74. 
Bailey  v.  Milner,  in,  333. 
Bailey  v.  Railroad  Co.,  53,  167,  337. 
Bailey  v.  Trustees,  191. 
Bains  v.  The  James  Catherine,  360. 
Baker  v.  Herndon,  149. 
Baker  v.  Wheaton,  155. 
Baker  v.  Wise,  40,  56,  108,  240,  289, 

293,  294,  342. 
Baldwin  v.  Bank,  159. 
Baldwin  v.  Comm.,  134. 
Baldwin  v.  Hale,  157,  158,  159. 
Baldwin  v.  Newark,  218. 
Ballantine  v.  Haight,  72,  156,  158. 
Ballard  v.  Ridgeley,  214. 
Ballard  v.  Webster,  1 59. 
Bait.  &  Ohio  Railroad   Co.   v.  Van 

Ness,  356. 
Bait.  &  S.  Railroad   Co.  v.  Nesbit, 

123,  168,  225. 
Bancher  v.  Fisk,  158,  159. 
Banet  v.   Alton  &  Sangamon  Rail- 
road Co.,  196,  198,  199,  200. 
Bangor  Railroad  Co.  v.  Smith,  189, 

190. 
Bank  v.  Bank  of  Cape  Fear,    112, 

128,  148,  163. 
Bank  v.  Clarke,  1 10,  1 1 1 . 
Bank  v.  Commissioners,  323,  324. 
Bank  v.  Daniel,  364. 
Bankv.  Deming,  132,  172. 
Bank  v.  Domigan,  219. 
Bank  v.  Dudley,  358. 
Bank  v.  Earle,  291. 
Bank  v.  Edwards,  132,  172. 
Bank  v.  Halstead,  100,  336. 
Bankv.  Hamilton,  180,  181,  185. 
Bankv.  Hart,  218. 
Bank  v.  Longworth,  213. 
Bank  v.  McVeigh,  148,  195. 
Bank  v.  New  Albany,  132,  172,  207. 


Bank  v.  Northumberland,  261, 

•Bank  v.  Okely,  361. 

Bank  v.  Osborn,  268. 

Bank  v.  Planters'  Bank,  366. 

Bank  v.  Spilman,  no. 

Bankv.  Squires,  159,  160. 

Bank  v.  Supervisors,  324. 

Bank  v.  Wister,  366. 

Bank  of  Cape  Fear  v.  Edwards,  175.. 

Bank  of  Columbia  v.  Att.  Gen.,  186. 

Bank  of  Commerce  v.  New  York,. 
316. 

Bank  of  Md.  v.  Ruff,  169. 

Bank  of  Penn.  v.  Comm.,  172. 

Bank  of  U.  S.  v.  Northumberland- 
Bank,  261,  268. 

Bank  of  U.  S.  v.  Roberts,  261,  267,, 
268,  273. 

Bank  of  Washington  v.  State,  133. 

Bank  Tax  Case,  325. 

Banks  v.  Mayor,  324,  325. 

Banta  v.  McNeil,  42. 

Baptiste  v.  State,  50,  291. 

Barber  v.  Andover,  180. 

Barber  v.  Minturn,  155. 

Barber  v.  Rogers,  76.  * 

Barbour  v.  Barbour,  143. 

Barden  v.  Supervisors,  24. 

Barings  v.  Dabney,  147,  1 50. 

Barker  v.  Jackson,  229,  360. 

Barker  v.  People,  341,  346,  361, 

Barker  v.  Pittsburgh,  143. 

Barkley  v.  Glover,  228. 

Barlow  v.  Gregory,  1 50. 

Barnaby  v.  State,  57. 

Barnes  v.  Barnes,  227. 

Barnes  v.  State,  38. 

Barnet  v.  Barnet,  141. 

Barnett  v.  Barbour,  231. 

Barney  v.  Chittenden,  62. 

Barque  Chusan,  The,  29. 

Barrell  v.  Benjamin,  293. 

Barrett,  Ex  parte,  335. 

Barren  v.  Mayor,  341,  342,  346. 

Barry  v.  Iseman,  123,  125. 

Barry  v.  Mercein,  277. 

Barry,  Ex  parte,  276. 

Barton  v.  Morris,  141. 

Bassv.  Fontleroy,  206,  207. 

Bassv.  Mayor,  142,  144. 

Battle  v.  Corporation,  240,  292. 

Baugherv.  Nelson,  115,  149,211,337, 

Bay  v.  Gage,  123. 

B.  C.  &  M.  Railroad  v.  State,  i8iy 
183- 

Beach  v.  Walker,  141. 


TABLE    OF    CASES. 


Vll 


Beal  v.  Burchstead,  156. 

Beal  v.  Nason,  229. 

Beall  v.  State,  48,  234,  235. 

Beatty  v.  U.  S.,  261. 

Beavens,  Ex  parte,  67,  68,  97. 

Beck  v.  Parker,  76. 

Beckerford,  In  re,  71. 

Bedford  Railroad  Co.  v.  Bowser,  202. 

Beekman  v.  Railroad,  140. 

Beer  v.  Hooper,  161. 

Beers  v.  Haughton,  217,  336. 

Beers  v.  Rhea,  1 56,  1 58. 

Beers  v.  State,  133. 

Beirne  v.  Brown,  216. 

Bela  Judd,  In  re,  74. 

Belfast,  The,  269,  271,  272. 

Bell  v.  Perkins,  141. 

Bell  v.  Roberts,  141,  229. 

Bellona  Company's  Case,  180. 

Benedict  v.  Vanderbilt,  239. 

Benford  v.  Gibson,  143. 

Benjamin  T.  Greenough,  Ex  parte, 

296. 
Bennett  v.   Boggs,  34,   57,  58,  271, 

287,  294,  338. 

Benson  v.  New  York,  163,  181,  205. 
Bergen,  In  re,  375,377- 
Berrett  v.  Oliver,  137. 
Berry  v.  Bellows,  333.. 
Berry  v.  Haines,  125,  230. 
Berry  v.  Ransdall,  229,  230. 
Bertemeyer  v.  Iowa,  375. 
Berthelemy  v.  Johnson,  143. 
Berthelon  v.  Betts,  77. 
Berthold  v.  Fox,  224. 
Berthold  v.  Holman,  224. 
Berwick,  John  D.,  Ex  parte,  335. 
Bethune  v.  Dougherty,  141,  211. 
Betts  v.  Bagley,  72,  1 57. 
Bibb  v.  Commissioners,  331. 
Biddle  v.  Comm.,46,  47,  233,234,321. 
Bigelow  v.  Pritchard,  215. 
Billings  v.  Hall,  126. 
Billis  v.  State,  109,  1 10. 
Billmeyer  v.  Evans,  227. 
Binghamton    Bridge     v.    Chenango 

Bridge,  163,  166,  167. 
Bish  v.  Johnson,  200. 
Bishop  v.  Loewen,  73. 
Bissell  v.  Briggs,  283,  285. 
Black  v.  Del.  &  Rar.  Canal  Co.,  202, 

203. 

Black  v.  Lusk,  80,  87. 
Blackford  v.  Peltier,  229. 
Blackman  v.  Gordon,  115. 
Blackman  v.  Green,  162. 


Blair  v.  Mil.  &  P.  Railroad  Co.  183. 

Blair  v.  Pathkiller,  62,  306. 

Blair  v.  Ric^gley,  114,  119,  308. 

Blair  v.  Williams,  120,  121,  122,  123, 
228. 

Blanchard  v.  Haynes,  84. 

Blanchard  v.  Russell,  72,  122,  130, 
155,  158,  159,  317. 

BlanchaTd  v.  Sprague,  83. 

Blanchard  v.  The  Martha  Washing- 
ton, 30. 

Blanchard's  Factory  v.  Warner,  84. 

Blann  v.  State,  121,  149. 

Bleakley  v.  Williams,   135,  152,  206. 

Bleakney  v.  Farmers'  Bank,  148,  186. 

Bloodgood  v.  Railroad  Co.,  140. 

Bloomer  v.  McQuewen,  350. 

Bloomer  v.  Stolley,  20,  83,  84. 

B.  &  M.  Railroad  Co.  v.  White, 
204. 

Board  v.  Bearse,  90. 

Board  v.  Fowler,  136. 

Board  v.  Pleasants,  48,  233. 

Board  v.  Scearce,  184. 

Boardman  v.  De  Forrest,  155. 

Bode  v.  State,  232. 

Bodley  v.  Gaither,  139. 

Bollman,  Ex  parte,  277,  280,  281. 

Bolton  v.  Johns,  216. 

Bonaparte  v.  Camden  &  Amboy  Rail- 
road Co.,  138,  140,  346,  359. 

Booe  v.  Junction  Railroad  Co.,  203. 

Booth  v.  Booth,  141. 

Booth  v.  Woodbury,  89,  90. 

Boring  v.  Williams,  358. 

Boston  v.  Cummins,  141. 

Boston  &  L.  Railroad  Co.  v.  Salem 
&  L.  Railroad  Co.,  171,  180,  364. 

Boston  Water  Power  Co.  v.  Rail- 
road, 1 80. 

Bowdoinham  v.  Richmond.  205. 

Bowen  v.  Johnson,  284,  286. 

Bowerbank  v.  Morris,  258. 

Bowlin  v.  Comm.,  370. 

Boyce  v.  Tabb,  1 54,  369. 

Boyd  v.  Ellis,  346. 

Boyer  v.  Dively,  66. 

Boykin  v.  Shaffer,  35,  38. 

Boyle  v.  Turner,  158. 

Boyle  v:  Zacharie,  1 58. 

Braddie  v.  Brownfield,  224. 

Bradford  v.  Cary,  204. 

Bradford  v.  Farrand,  1 58. 

Bradwell  v.  State,  287,  289,  375. 

Brainard  v.  Williams,  261. 

Brainerd  v.  Colchester,  175. 


Vlll 


TABLE    OF    CASES. 


Branch  v.  Baker,  155. 

Brandon  v.  Gaines,  210. 

Branin  v.  Conn.  &  P.  Railroad  Co., 

185. 

Brashear  v.  Williams,  65,  66. 
Braynard  v.  Marshall,  1 59. 
Breed  v.  Cunningham,  1 50. 
Breitenbach  v.  Bush,  228. 
Breitenbach  v.  Turner,  25. 
Brengle  v.  McClellan,  284,  285. 
Brest  v.  Smith,  156. 
Brewer  v.  Kidd,  335. 
Brewer  v.  Otoe  Co.,  135. 
Brewster  v.  Hough,  172. 
Bridge  Co.  v.  Hoboken  Land  Co., 

134,  170. 

Bridgeport  v.  Hubbell,  115,  205. 
Bridgeport  v.  Railroad  Co.,  148. 
Brien  v.  Clay,  216,  338. 
Brig  Wilson  v.  U.  S.,  27,  28,  29. 
Brigham  v.  Henderson,  161. 
Brighton  Bank  v.  Merick,  1 59. 
Bright  Star,  The,  33,  56. 
Brinsfield  v.  Carter,  133. 
Brinton  v.  Seevers,  141. 
Briscoe  v.  Anketell,  229,  230. 
Briscoe  v.  Bank,  5,  17,  108,  109,  no, 

112. 

Bristoe  v.  Evans,  139. 
Bristol  v.  New  Chester,  205. 
Brittle  v.  People,  299. 
Britton  v.  Butler,  88. 
Broadway,  In  re,  151. 
Bronson  v.    Kinzie,    121,   123,   209, 

211,  221,  223,  225. 
Bronson  v.  Newberry,  217. 
Brooklyn   Central    Railroad    Co.   v. 

Brooklyn  City  Railroad  Co.,  140. 
Brooklyn  Park  v.  Armstrong,  137. 
Brown  v.  Bridge,  161. 
Brown  v.  Collins,  1 59. 
Brown  v.  Dillahunty,  217. 
Brown  v.  Duchesne,  83. 
Brown  v.  Fairmount  Co.,  201. 
Brown  v.  Hummel,  165. 
Brown  v.  Penobscot  Bank,  184. 
Brown  v.  Read,  333. 
Brown  v.  State,  5,  7,  19,  26,  32,  46, 

232,233,  234,  236,  312,  322,337. 
Brown  v.  Storm,  123. 
Brown  v.  U.  S.,  88. 
Brown  v.  Ward,  227. 
Bruce  v.  Schuyler,  221. 
Brumagin  v.  Tillinghast,  235. 
Bruns  v.  Crawford,  123. 
Bryan  v.  Cattell,  144. 


Bryan  v.  Moore,  152. 

Bryan  v.  State,  342. 

Bryson  v.  Campbell,  143. 

Buchanan  v.  Smith,  332. 

Buck  v.  Vasser,  332. 

Buckner  v.  Finley,  364. 

Buckwalter  v.  U.  S.,  273. 

Buffalo  &  N.  Y.  City  Railroad  Co. 

v.  Dudley,  194,  202,  203,  204. 
Buie  v.  Parker,  88. 
Bulkley  v.  N.  Y.  &  N.  H.  Railroad 

Co.,  192. 

Buller  v.  Palmer,  229. 
Bulow  v.  Charleston,  326. 
Bumgardner  v.  Circuit  Court,  227. 
Bunker  v.  Green,  23. 
Bunn  v.  Gorgas,  227. 
Burbanks  v.  Williams,  339. 
Burford,  Ex  parte,  277,  344. 
Burke  v.  Tregre,  251. 
Burlock  v.  Taylor,  293. 
Burns  v.  State,  375. 
Burrall  v.  Rice,  1 59. 
Burt  v.  Merchants'  Ins.  Co.,  356. 
Burt  v.  Williams,  227. 
Burton's  Appeal,  138. 
Burton  v.  Emerson,  221. 
Bush  v.  Lester,  72. 
Bush  v.  Peru  Bridge  Co.,  170. 
Bush  v.  Shipman,  112,  205. 
Butler  v.  Chariton,  206. 
Butler  v.  Hopper,  101,  298. 
Butler  v.  Pennsylvania,  126,  144,  337. 
Butler  v.  State,  35. 
Butler  v.  Toledo,  115. 
Butler  v.  Walker,  194. 
Butz  v.  City,  125. 
Byrd  v.  Badger,  1 58. 
Byrne  v.  State,  109,  in. 
Byrne  v.  Stewart,  115. 

Cabell  v.  Cabell,  143. 

Caesar  Griffin,  Ex  parte,  4,  341,  379. 

Calder  v.  Bull,   114,    115,   117,   120, 

225,  337,  338,  364- 
Calder  v.  Kurby,  144. 
Calhoun  v.  Calhoun,   125,  154,  308, 

369- 

California  Pacific  Railroad  Co.,  70. 
Call  v.  Hagger,  229. 
Callicott,  Theophilus  C,  In  re.  253. 
Camclen  &  Amboy  Railroad  Co.  v. 

Briggs,  38,  183. 
Camclen  £  Amboy  Railroad  Co.  v. 

Commissioners,    132,    172,    175, 

178. 


TABLE    OF    CASES. 


IX 


Camden  &  Amboy  Railroad  Co.  v. 
*  Hillegas,  175. 

Cameron  v.  Wurtz,  284. 

Camp  v.  Smith,  302. 

Campbell  v.  Claudius,  158. 

Campbell  v.  Morris,  287,  290,  293. 

Campbell  v.  State,  357. 

Campbell  v.  T.  &  N.  O.  Railroad 
Co.,  152. 

Campbell  v.  U.  S.,  81. 

Canal  Co.  v.  Railroad  Co.,  127,  129, 
132,  163,  241. 

Canfield  v.  Hunter,  227. 

Cannon  v.  New  Orleans,  237,  238. 

Caperton  v.  Martin,  115. 

Capron  v.  Johnson,  1 59. 

Carl  Wehlitz,  Ex  parte,  68. 

Carlton,  Ex  parte,  335. 

Carpenter  v.  Northrield  Bank,  25. 

C.  £  A.  Railroad  Co.  v.  People,  184. 

Carey  v.  Conrad,  161. 

Carey  v.  Giles,  187. 

Cargill  v.  Power,  224. 

Carpenter  v.  Comm.,  115. 

Carpenter  v.  The  Emma  Johnson, 
271. 

Carroll  v.  Boyd,  333. 

Carroll  v.  Perry,  302. 

Carroll  v.  Rossiter,  223. 

Carroll  v.  Safford,  302. 

Carson  v.  Carson,  118,  143. 

Carson  R.  L.  Co.  v.  Patterson,  45. 

Carter  v.  Bennett,  284. 

Carter,  Perkins,  Ex  parte,  115,  298, 
304,  320,  321. 

Cary  v.  Curtis,  261. 

Cassard  et  al.  v.  Kroner,  78. 

Cassell  v.  Backrack,  232. 

Catlin  v.  Munger,  219.  221. 

Central  Bank  v.  Empire  Stone  Dress- 
ing Co.,  148. 

Central  Bank  v.  Little,  no. 

Central  Bank  v.  Pratt,  97. 

Central  Bridge  v.  Lowell,  180,  207. 

Central  R.  &  B.  Co.  v.  State,  188. 

Central  Railroad  Co.  v.  Ward,  330, 

331- 

C.  &  F.  Railroad  Co.  v.  Hecht,  185. 
Chadwick  v.  Moore,  228. 
Chamberlain  v.  Perkins,  77. 
Champaign  Bank  v.  Smith,  146. 
Champion  v.  Memphis  &  Charleston 

Railroad  Co.,  198. 
Chancely  v.  Bailey,  275,  328,  330. 
Chandler  v.  Siddle,  75. 
Chapman  v.  Miller,  27,37,41,294,295. 


!  Chappell  v.  Williamson,  330. 
i  Charles  A.  Dana,  Ex  parte,  279. 

Charles  E.  Hopson,  Ex  parte,  335. 

Charles    River    Bridge    v.    Warren 
Bridge,  123,  166,  170,  337,  338. 
i  Charleston    v.    Rogers,    7,    39,    57, 

318. 
|  Chase  v.  Flagg,  1 59. 

Chemung   Canal   Bank  v.    Lowery, 
295. 

Cherokee  Nation  v.  Georgia,  64. 

Cherokee  Nation  v.  State,  3,  59,  27  &, 
276. 

Cherokee  Tobacco,  The,  60,  314. 

Cherry  v.  Jones,  369. 

Ches.  &  O.  Canal  Co.  v.  Key,  354, 
356. 

Chesapeake  Bank  v.  First  Nat.  Bank, 

98. 
!  Chesnut  v.  Shane,  141. 

Chicago  v.  Lunt,  324. 

Chicago,  B.  &  Q.  Railroad  Co.v.  Hag- 

gerty,  183. 

I  Chicago,   B.   &  Q.  Railroad  Co.  v. 
Iowa,  39,  172,  184. 

Chicago  v.  Sheldon,  125. 

Childress  v.  Emory,  359. 

Chilvers  v.  People,  55. 

Chirac  v.  Chirac,  67,  255. 

Chisholm  v.  Coleman,  332. 
i  Chisholm  v.  Georgia,  275. 
I  Chitty  v.  Glenn,  231. 
|  Choteau  v.  Molony,  306. 
1  Choteau  v.  Richardson,  158,  161. 

Christmas  v.  Russell,  285. 

Church  v.  Chambers,  40. 

Churchman  v.  Martin,  118. 

Chusan,  The,  37,  269,  272. 

Chy  Lung  v.  Freeman,  29,  49. 

Cisco  v.  Roberts,  30. 

Citizens'  Bank  v.  Degnoodt,  215. 

City  v.  Ahrens,  39,  235. 

City  v.  Boatman's  Ins.  &  Trust  Co., 
172. 

City  v.  Boffinger,  39. 

City  v.  Churchill,  318,  321,  323,  326, 

City  v.  Cov.  &  Cin.  Bridge  Co.,  197. 

City  v.  Erie  Canal  Co.  169.. 
I  City  v.  Han.  &  St.  Jo.  Railroad  Co., 

176. 

j  City  v.  111.  Cent.  Railroad  Co.,  145. 
|  City  v.  Lamson,  125. 
|  City  v.  McCoy,  39. 
i  City  v.  Menard,  58. 

City  v.  Metropolitan  Bank,  193. 


TABLE    OF    CASES. 


City  Nat'l  Bank  v.  Mahan,  109. 

City  v.  Railroad  Co.,  142. 

City  of  Richmond  v.  R.  &  D.  Rail- 
road Co,  175. 

City  of  Roxbury  v.  Railroad  Co.,  190, 
191. 

City  v.  Russell,  205. 

City  v.  Society,  178. 

City  v.  Stevenson,  24. 

City  v.  The  Nautilus,  239. 

Claflin  v.  Houseman,  273. 

Clark  v.  Clark,  143. 

Clark  v.  Dick,  113,  264,  346. 

Clark  v.  Hatch,  1 58. 

Clark  v.  Martin,  228. 

Clark  v.  Mitchell,  352. 

Clark  v.  Monongahela  Navigation 
Co.,  196,  200,  201. 

Clark  v.  Sickel,  105. 

Clark  v.  Smith,  305,  308. 

Clark  v.  Ticknor,  1 52. 

Clark  v.  U.  S.,  360. 

Clarke  v.  Ray,  77. 

Clay  v.  Smith,  162. 

Clay  v.  State,  93. 

Clemens  v.  Conrad,  23. 

Clement  L.  Vallandigham,  Ex  parte, 
275,  277. 

Clinton  Bridge,  The,  26,  27,  33,  50, 

313- 

Coates  v.  New  York,  140. 
Cochran  v.  Darcy,  225. 
Cochran  v.  Van  Surlay,  123. 
Cockrum  v.  State,  343. 
Coffin  v.  Rich,  155,  169. 
Coffin  v.  State,  144. 
Coffman  v.  Bank,  209,  212,  227. 
CofTman  v.  Keightly,  90. 
Cohens  v.  Virginia,  4,  5,  6,  92,  268, 

274,  275,  277,  278,  316,  328,  329, 

365,  366. 

Colby  v.  Dennis,  225. 
Coles  v.  Madison,  115,  207. 
Collector  v.  Day,  23,  334. 
Collet  v.  Collet,  67. 
Collins  v.  Chicago,  326. 
Collins  v.  Rodolph,  158,  162. 
Collins  v.  Sherman,  166,  170. 
Collins  v.  Society,  42. 
Colt's  Estate,  284. 
Colt  v.  Eves,  358. 

Columbus  Ins.  Co.v.Curtenius,  52,53. 
Columbus  Ins.  Co.  v.  Peoria  Bridge 

Co.,  51,  52,  53 
Comer  v.  Folsom,  90,  142. 
Comm.  v.  Alger,  41. 


Comm.  v.  Aves,  298. 

Comm.  v.  Bacon,  144. 

Comm.  v.  Bean,  116. 

Comm.  v.  Bedford  Bridge,  52. 

Comm.  v.  Bird,  135. 

Comm.  v.  Bonsall,  192. 

Comm.  v.  Breed,  52. 

Comm.  v.  Clapp,  235,  338. 

Ccmm.  v.  Clary,  94. 

Comm.  v.  Cullen,  187. 

Comm.  v.  Dennison,  276,  296,  297, 

363- 

Comm.  v.  Eastern  Railroad  Co.,  193. 
Comm.  v.  Essex  Co.,  191,  194. 
Comm.  v.  Farmers'  Bank,  164,  186. 
Comm.  v.  Fayette  Co.  Railroad  Co., 

1 88,  192,  193. 
Comm.  v.  Feely,  273. 
Comm.  v.  Fitzgerald,  298. 
Comm.  v.  Fox,  335. 
Comm.  v.  Gardner,  117. 
Comm.  v.  Green,  283,  285. 
Comm.  v.  Griffin,  26,  40,  289. 
Comm.  v.  Griffith,  298,  344. 
Comm.  v.  Hall,  297. 
Comm.  v.  Hitchings,  341. 
Comm.  v.  Intoxicating  Liquors,  185. 
Comm.  v.  Irish,  90. 
Comm.  v.  Kimball,  125,    235,  363, 

364- 

Comm.  v.  Lewis,  96,  98,  103,  321. 
Comm.  v.  Merrill,  348. 
Comm.  v.  Milton,  287,  289,  291,  294. 
Comm.  v.  Morrison,   21,  95,  98,  316, 

321,  322,  324,  326,  329. 
Comm.  v.  Murray,  89. 
Comm.  v.  Ober,  48,  235. 
Comm.  v.  O'Hara,  73. 
Comm.  v.  Phillips,  116. 
Comm.  v.  Pomeroy,  342. 
Comm.  v.  Schaffer,  274. 
Comm.  v.  Towles,  69,  287. 
Comm.  v.  Tracy,  295,  297. 
Comm.  v.  Young,  93,  94. 
Commercial  Bank  v.  Chambers,  211. 
Commercial  Bank  v.  State,  130,  164, 

1 68,  1 86,  209,  210. 
Commissioner  v.  Jarvis,  187. 
Commissioners  v.  Brandt,  49. 
Commissioners  v.  Cuba,  41. 
Commissioners  v.  Holyoke  W.  P.  Co., 

192. 

Commissioners  v.  Lucas,  208. 
Commissioners  v.  Pidge,  52,  54. 
Conant  v.  Van  Schaick,  155. 
Concord  Railway  v.  Greely,  346. 


TABLE    OF    CASES. 


XI 


Confiscation  Cases,  282. 

Conkey  v.  Hart,  211,  222. 

Conner  v.  Elliott,  288,  295. 

Conner,  John  O.,  In  re,  95. 

Conner  v.  New  York,  143. 

Continental  Ins.  Co.  v.  Kasey,  264. 

Converse  v.  Bradley,  161. 

Converse  v.  Burrows,  224. 

Conway  v.  Taylor,  55. 

Cook  v.  Moffat,  156,  158. 

Cook  v.  Oliver,  330,  333. 

Cook  v.  Rogers,  76. 

Cook  v.  Smith,  146. 

Cook  v.  State,  176. 

Cooke  v.  Cooke,  332. 

Cooley  v.  Philadelphia,  5,  18,  27,  28, 

3°>  33.  36,  37,  4i>  42,    1 08,  234, 

238,  317,  318. 

Coosa  River  Steamboat  Co.  v.  Bar- 
clay, 215. 

Corbin  v.  Marsh,  353,  355. 
Corfield  v.  Coryell,   31,  34,   57,   58, 

271,  287,  294. 
Coriell  v.  Ham,  218. 
Cornelius  v.  Glen,  139. 
Cornell  v.  Hichens,  214. 
Corner  v.  Miller,  73. 
Cornet  v.  Winton,  308. 
Corning  v.  Greene,  133. 
Corporation  v.  Overton,  55. 
•Cory  v.  Carter,  370,  378. 
Cov.  &  L.  Railroad  Co.  v.  Kenton, 

207. 

Cowles  v.  Brittain,  47,  233. 
Cowser  v.  State,  333. 
Cox  v.  Berry,  230. 
Cox  v.  State,  54,  126. 
Coxe  v.  Martin,  228. 
Coxe  v.  McClenachan,  13. 
Craig  v.  Dimock,  23. 
Craig  v.  Kline,  38. 
Craig  v.  State,  109,  ill. 
Craighead  v.  Bank,  no,  221.  / 

Crandall,  In  re,  236.  V 

Crandall  v.  State,  43,  326,  337. 
Cranson  v.  Smith,  85. 
Crapo  v.  Kelly,  161. 
Crawford  v.  Bank,  219. 
C  R.  &  B.  Co.  v.  State,  193. 
Crease  v.  Babcock,  188,  189. 
Crenshaw  v.  Slate  River  Co.,  139, 

151. 
Crescent  G.  C.  Co.  v.  New  Orleans 

G.  Co.,  206. 

Crittenden  v.  White,  85. 
Cronise  v.  Cronise,  143. 


Crosby  v.  Hanover,  180. 

Cross  v.  Harrison,  250. 

Crow  v.  Coons,  160. 

Crow  v.  State,  47. 

Cubreth,  Ex  parte,  297. 

Culbreath  v.  Hunter,  227. 

Cully  v.  Bait.  &  O.   Railroad  Co., 

375- 

Cummings  v.  Maxwell,  229. 
Cummings  v.  Savannah,  47,  233. 
Cummings  v.  State,  113,  115,  119. 
Curiac  v.  Albadie,  80,  87. 
Curran  v.  State,   109,   no,  124,  164, 

169,  195,  209,  211. 
Currie  v.  Mutual  Assurance  Society,. 

204. 

Curtis  v.  Gibbs,  3,  283. 
Curtis  v.  Leavitt,  148. 
Curtis  v.  Morehouse,  170. 
Curtis  v.  Whitney,   129,  146. 
Curry  v.  Davis,   1 54. 
Curry  v.  Landers,  213. 
Gushing  v.  T»he  James  Gray,  41. 
Cusic  v.  Douglas,  22,6. 
Cutter  v.  Folsom,  70. 
Cutts  v.  Hardee,  214. 
Cynosure,  The,  40. 


Dabb's  Case,  335. 

Dale  v.  Governor,  133. 

Dailey  v.  Burke,  213. 

Damman  v.  Commissioners,  134. 

Dana,  Chas.  A.,  Ex  parte,  279. 

Daniel  Ball,  The,   29,  31,  32,  33,  35, 

36. 

Daniel  Deckert,  In  re,  72. 
Danley  v.  State  Bank,  215. 
Darrington  v.    Branch   Bank,    109, 

no. 

Darlington  v.  U.  S.,  356. 
Dart  v.  Houston,  206. 
Dartmouth  College  v.  Woodward,  4r 

126,  143,  163,  165,  1 66,  337- 
Dash  v.  Van  Kleeck,  115,  127. 
Daughdrell  v.  Life  Ins.    Co.,     132, 

172. 

Dausin  v.  Champlin,  336. 
Davenport  v.  Davenport,  207. 
David  Howes,  In  re,  14. 
Davidson  v.  Smith,  161. 
Davis,  Jefferson,  Ex  parte,  379. 
Davis  v.  Ballard,  115,  123,  209,  224.. 
Davis  v.  Bronson,   123. 
Davis  v/Central  Railroad  Co..  219. 
Davis  v.  Dashiel,  47,  233,  236. 


Xll 


TABLE    OF    CASES. 


Davis  v.  Gray,  139,  365. 

Davis  v.  Peirse,  119,   216,  228,  289, 

290,  293. 

Davis  v.  State  Bank,  142. 
Davis  v.  The  Seneca,  269,  270. 
Davison  v.  Champlin,  262,  273. 
Dawson  v.  Shaver,  336,  358. 
Dawson  v.  State,  118. 
Day  v.  BardwelL  71,  77. 
De  Cordova  v.  Galveston,  229. 
Deciiir  v.  Benson,  50,  376. 
Degant  v.  Michael,  318. 
Deichman's  Appeal,  151. 
Delafield  v.  State,  272,  273,  274. 
De  la  Howe  v.  Harper,  225. 
Del.  Railroad  Co.  v.  State,  146. 
Del.  Railroad  Co.  v.  Tharp,  198,  199. 
Del.  Railroad  Co.  v.  Thorp,  188. 
Del.  Railroad  Tax,  45,  172,  173, 178. 
Delmas  v.  Ins.  Co.,  154,  333. 
Delorme  v.  Ferk,  24. 
De  Lovis  v.  Birt,  269,  270. 
Demerritt  v.  Exchange  Bank,  159. 
Den  v.  Jersey  Co.,  36. 
Dentzel  v.  Waldie,  141. 
Denver  v.  Hobart,  144. 
Depew  v.  Trustees,  35,  299. 
Derby  Turnpike  Co.  v.  Parks,    128, 

137,  163,  164. 
D'Wolf  v.  Rabaud,  359. 
Dickey  v.  Turnpike  Co.,  82,  95,  356. 
Dickinson  v.  Dickinson,  117,  118. 
Dikeman  v.  Dikeman,  146. 
Dingman  v.  People,  132,  185. 
Dinsmore  v.  Bradley,  1 58. 
District  Attorney,  Case  of,  257. 
Dittmars  v.  Myers,  333. 
Dobbins  v.  Commissioners,  323. 
Dodge  v.  Coffin,  285. 
Dodge  v.  Woolsey,  125,  132,  173,  278, 

311,  317,  319,  364- 
Dole  v.  Irish,  65. 
Doll  v.  Evans,  260. 
Donnell  v.  State,  298,  318. 
Donnelly  v.  Corbett,  158,   159,   161, 

162,  217. 

Dooley  v.  Smith,  80,  87. 
Dorman  v.  State,  38. 
Dorm  ire  v.  Cogley,  227. 
Doty  v.  Strong,  12,  13. 
Dougherty  v.  Fogle,  216. 
Doughty  v.  Sheriff,  225. 
Douglass  v.  Stephens.  291,  294. 
Dover  v.  Portsmouth  Bridge,  51,  52, 

53.  54,  241. 
Downham  v.  Alexandria,  48,  292. 


Doyle  v.  Continental  Ins.  Co.,  264. 

Dranguet  v.  Rost,  1 54. 

Dred  Scott  v.  Sandford,  6,  66,  67,  68, 

287,  288,  290,  291,  299,  300,  303, 

304,  305,  342. 

Drehman  v.  Stifle,  113,  123,  153. 
Dresser  v.  Brooks,  70. 
Druecker  v.  Salomon,  281,  282. 
Dryden  v.  Comm.,  30. 
Ducat  v.  Chicago,  291. 
Duer  v.  Small,  292. 
Duke  v.  Navigation  Co.,  299. 
Dulany  v.  Tilghman,  141. 
Duncan  v.  Darst,  336. 
Dundas  v.  Bowler,  124,  148,  261. 
Dunham  v.  Lamphere,  36,  58,  294. 
Dunlap  v.  Rogers,  161. 
Dunn,  Ex  parte,  102. 
Durand  v.  Hollins,  255. 
Durfee  v.  Railroad  Co.,  202,  203,  204. 
Durousseau  v.  U.  S.,  277. 
Duvall  v.  Fearson,  285. 
Dwight  v.  Simon,  74. 
Dyer  v.  Tuscaloosa  Bridge  Co.,  139. 
Dyke  v.  McVey,  301. 
Dynes  v.  Hoover,  90. 


Eakin  v.  Raub,  336,  337. 
Eames,  Lucius,  In  re,  73. 
Earle  v.  Johnson,  227. 
Easterly  v.  Goodwin,  159,  161. 
Easton  v.   N.  Y.   £  L.  B.   Railroad 

Co.,  52. 

Easton  Bank  v.  Comm,,  172. 
Eaton  v.  Sweetser,  1 59. 
Ebersole  v.  Adams,  76. 
Edelward's  Appeal,  23. 
Edmondson  v.  Ferguson,  129,  228. 
Edward  Klein,  In  re,  69,  70,  73. 
Edwards  v.  Dixon,  153. 
Edwards  v.  Elliott,  358. 
Edwards  v.  Jagers,  124. 
Edwards  v.  McCaddon,  230. 
Edwards  v.  Panama,  30,  37,  303. 
Edwin  Heyward,  Ex  parte,  298. 
Eells  v.  People,  298,  317,  320. 
Ehrenzeller  v.  Canal  Co.,  187. 
Einer  v.  Beste,  1 57. 
Eldridge  v.  Cowell,  41. 
Electoral  Count,  243,  244,  368. 
Eli  Horton,  In  re,  74. 
Elkinson  v.  Deliesseline,  40. 
Elliott  v.  Elliott,  1 1 8. 
Elliott  v.  Van  Voorst,  336. 
Ellis  v.  State,  379. 


TABLE    OF    CASES. 


Xlll 


Elmore  v.  Grymes,  359. 

Elwell  v.  Tucker,  153. 

Ely  v.  M.  &  B.  Manuf.  Co.,  360. 

Ely  v.  Peck,  262,  273. 

Emanuel  Roberts,  Ex  parte,  335. 

Emory  v.  Greenough,  1 58. 

Empire  City  Bank,  In  re,  194. 

Enfield   Bridge   Co.    v. '  Connecticut 

River  Co.,  163,  164,  166,  180. 
Enfield  Bridge  Co.  v.  Railroad  Co., 

163,  170,  179. 

English  v.  New  Haven  Co.,  191. 
English  v.  State,  343. 
English  v.  Supervisors,  136. 
Erie  Co.  v.  State,  44. 
Erie  &  N.  E.  Railroad  Co.  v.  Casey, 

189. 

Erie  Railroad  Co.  v.  Comm.,  173. 
Ervine's  Appeal,  350,  352. 
Eu-che-lah  v.  Welsh,  301. 
Evans  v.  Eaton,  20. 
Evans  v.  Jordan,  83,  120. 
Evans  v.  Montgomery,  216. 
Evans  v.  Richmond,  331. 
Evans  v.  Robinson,  120. 
Evans  v.  Weiss.  120. 
Evansville,  H.  &  N.  Railroad  Co.  v. 

Comm.,  173,  178. 
Everhart  v.  Phila.  &  W.  C.  Railroad 

Co.,  197. 
Exchange  Bank  v.  Hines,  132,  172, 

173,  218. 


Fagan,  Ex  parte.  102. 
Fain  v.  Headerick,  333. 
Fales  v.  Wadsworth,  214. 
Fall  v.  Suter,  170.  -  , 

Fanney  v.  Montgomery,  298. 
Fanning  v.  Gregoire,  55. 
Farmers'  Bank  v.  Comm.,  173. 
Farmers'  Bank  v.  Gunnell,  1 50. 
Farmers'  Bank  v.  Smith,  72,  155,  316, 

317,  319- 
Farmers'  National  Bank  v.  Bearing, 

98,  316. 

Farnsworth  v.  Vance,  120,  228. 
Farwell  v.  Rockland,  144. 
Felch  v.  Bugbee,  159. 
Fell  v.  State,  144. 
Fellows  v.  Blacksmith,  315. 
Fellows  v.  Denniston,  314,  315. 
Fellows  v.  Lee,  306. 
Ferguson  v.  Landram,  89,  90. 
Ferguson  v.  Miners'  £  Manuf.  Bank, 

1 88. 


Ferrand,  Ex  parte,  335. 

Ferrira  v.  Keevit,  1 58. 

Ferris  v.  Coover,  278. 

Fessenden  v.  Willey,  159,  160. 

Field,  Anson,  Ex  parte,  101,  344. 

Fielden  v.  Lahens,  152. 

Fife  v.  State,  343. 

Fifield  v.  Close,  23. 

Fire    Department    v.     Helfevistein, 

291. 

Fire  Department  v.  Noble,  291. 
Fire  Department  v.  Wright,  291. 
F.  £  M.  Ins.  Co.  v.  Hurrah,  291. 
Fireman's  Association  v.  Loansbury,. 

291. 

First  Nat.  Bank  v.  Douglas,  325. 
First  Nat.  Bank  v.  Lamb,  98,  99. 
Fisher  v.  Cockerill,  115,  139. 
Fisher  v.  Lacky,  217. 
Fisher  v.  Wheeler,  156,  158. 
Fisk  v.  Montgomery,  74. 
Fisk  v.  Union  Pacific  Railroad  Co.,. 

264. 

Fiske  v.  Foster,  1 58. 
Fitch    v.     Livingston,    39,    58,   317, 

320. 

Fitch  v.  Railroad  Co  ,  170. 
Fitchburg    Railroad    Co.   v.   Grand 

Junction  Railroad  Co.,  191. 
Fitzpatrick  v.  Hearne,  154. 
Flannagan  v.  Philadelphia,  53. 
Fleming  v.  Page,  87,  88,  249. 
Fletcher  v.  Peck,  128,  137,  138,  139, 

305,  308,  337. 
Fletcher  v.   R.  £  B.  Railroad  Co., 

Flint  £  F.  P.  Co.  v.  Woodhull,  189. 

Florentine  v.  Barton,  151. 

Florida  v.  Georgia,  241,  276. 

Floyd  v.  Recorder,  298.    ' 

Fogg  v.  Williams,  138. 

Folsom  v.  U.  S.,  107. 

Forcheimer  v.  Holly,  23,  154,  333. 

Ford  v.  Clinton,  23. 

Ford  v.  Hale,  216. 

Ford  v.  State,  379. 

Forsyth  v.  Marbury,  115,  120,  226, 

229. 
Fort  Plain  Bridge  Co.  v.  Smith,  170, 

1 88. 

Foster  v.  Chamberlain,  30. 
Foster  v.  Commissioners,  62. 
Foster  v.  Davenport,  33,41. 
Foster  v.  Essex  Bank,  186. 
Foster  v.  Jackson,  358. 
Foster  v.  Neilson,  .313. 


XIV 


TABLE    OF    CASES. 


Foster  v.  Port  Wardens,  41. 

Fowler  v.  Halbert,  139. 

Fowler  v.  Lindsey,  275. 

Fox  v.  State,  79,  81,  319,  341. 

Fox  v.  Woods,  333. 

Francis  Hatch,  The,  243. 

Frank  Knowles,  Ex  parte,  6,  67,  68, 

262,  263. 

Franklin  Bank  v.  State,  173. 
Frazer  v.  Seibern,  326. 
Free  v.  Haworth,  219. 
Freeborn  v.  Pettibone,  223. 
Freeborn  v.  Smith,  262. 
Freedman  v.  Sigel,  24. 
Freeman  v.  Robinson,  317. 
Freeman  v.  How,  336. 
Freleigh  v.  State,  144. 
French  v.  O'Brien,  77. 
French  v.  Tomlin,  1 54,  333. 
Frey  v.  Kirk,  156,  158,  160. 
Fry  v.  L.  &  B.  S.  Railroad  Co.  200, 

201. 

Fuller  v.  Spear,  58. 
Fults  v.  Fox,  143. 
Furman  v.  Nichol,  147. 

Gaines  v.  Buford,  138,  139. 
Gaines  v.  Fuentes,  264,  266. 
Gaines  v.  Rives,  112. 
Galena  &  C.  Railroad  Co.  v.  Loomis, 

181,  183. 

Galena  Railroad  Co.  v.  Appleby,  183. 
Gantly  v.  Ewing,  221. 
Gardner  v.  Collector,  14,  15. 
Gardner  v.  Jeter,  216. 
Gardner  v.  Lee's  Bank,  162. 
Gardner  v.  State,  132,  172. 
Garland,  Ex  parte,  103,  252,  253. 
Garlington  v.  Priest,  227. 
Garr  v.  Bright,  365. 
Garrett  v.  Beaumont,  229. 
Garrett  v.  Cheshire,  225. 
Garrison  v.  Mayor,  151. 
Gatzweiller  v.  People,  205,  207. 
Gault's  Appeal,  126,  146. 
Gautden  v.  Stoddard,  369. 
Geery's  Appeal,  78. 
Gelston  v.  Hoyt,  260. 
Genesee  Chief  v.  Fitzhugh,  269,  270, 

271. 

Geo.  B.  Keeler,  In  re  243. 
George  Doll,  Ex  parte,  260. 
Geo.  H  Corliss,  In  re,  243. 
George  Kirk,  In  re,  318. 
George  Peters,  Ex  parte,  63. 
Geo.  T.  Duerson,  In  re,  72. 


Geo.  W.  Dillard,  In  re,  72. 

George  v.  Concord,  20,  25,  79,  80, 
87,  362. 

George  v.  Gamble,  308. 

German  Liederkranz  v.  Schieman,  23. 
yGibbons  v.  Ogden,  17,  18,  19,  20, 
26,  27,  28,  29,  32,34,  37,  39,41, 
57,  95,  284,  312,  318,  321. 

Gibson  v.  Choteau,  301. 

Gilbert  v.  Commissioners,  144. 

Gile  v.  Hallock,  301. 

Gilman  v.  Contra  Costa,  135. 

Gilman  v.  Cutts,  230. 

Gilman  v.  Lockwood,  158. 

Gilman  v.   Philadelphia,  32,  34.  36, 

50,  Si.  52. 

Gilman  v.  Sheboygan,  231. 
Gilmer  v.  Lime  Point,  312,  356. 
Gelpcke  v.  Dubuque,  125. 
Gist,  Ex  parte,  256,  259,  260,  263,274. 
Gittings  v.  Crawford,  277. 
Gittner  v.  Gorham,  298. 
Glenn  v.  Glass  Co.,  161,  162. 
Glenn  v.  Hodges,  298. 
Glenn  v.  Humphreys,  162,  336. 
Glover  v.  Powell,  35,  54,  151. 
Godfrey  v.  Beardsley,  306. 
Goenen  v.  Schroeder,  153,  223. 
Goggins  v.  Turnipseed,  152. 
Golden  v.  Prince,  72,  129,  155. 
Gold  Hunter,  The,  270. 
Goldsmith  v.  Brown,  136. 
Goodall  v.  Tuttle,  71. 
Goodell  v.  Jackson,  65. 
Goodman  v.  McGehee,  333. 
Gordon  v.  Appeal  Tax  Court,  174, 

177. 

Gordon  v.  Baltimore,  172. 
Gordon  v.  Canal  Co.  216. 
Gordon  v.  Kerr,  313. 
Gordon  v.  U.  S.,  277. 
Gorman  v.  Pacific  Railroad,  181,  183. 
Goshen  v.  Stonington,  142. 
Gotcheus  v.  Matheson,  103. 
Governor  v.  Gridley,  204,  229. 
Governor  v.  Madrazo,  366. 
Gowen  v.  Penobscot    Railroad  Co., 

169. 

Gozzler  v.  Georgetown,  140. 
Graham  v.  State,  219. 
Graham  v.  Stucken,  277. 
Grammar  School  v.  Burt,  138. 
Grand  Gulf  &  P.  B.  R.  Co.  v.  Buck, 

178. 
Grand  Gulf    Railroad  Co.  v.  State, 

217. 


TABLE    OF    CASES. 


XV 


Graniteville   Manuf.   Co.    v.    Roper, 

147. 

Grannahan  v.  Railroad  Co.,  185. 
Grant  v.  U.  S.,  354. 
Grantly  v.  Ewing,  223. 
Grapeshot,  The,  250,  251,  261. 
Gratiot  v.  U.  S.,  257. 
Graves  v.  State,  298,  318. 
Gray  v.  Coffin,  169. 
Gray    v.    Monongahela    Navigation 

Co.,  196,  197,  201. 
Gray  v.  Munroe,  217,  350. 
Grayson  v.  Lilly,  227. 
Great  Barrington  v.  Berkshire,  151. 
Greely  v.  Townsend,  263. 
Green  v.  Biddle,  127,  128,  130,  139, 

209,  241,  336,  358. 
Green  v.  Sarmiento,  283,  284. 
Green  v.  Savannah,  359. 
Green  v.  Shumway,  114,  119. 
Green  v.  Sizer,  ill,  333. 
Green  v.  State,  39,  236. 
Greenfield  v.  Dorris,  130,  222. 
Greenleaf  v.  Township,  206. 
Greenville   &  Col.  Railroad  Co.  v. 

Coleman,  198. 
Gregg  v.  Hilsen,  77. 
Gregory  v.  Shelby  College,  144. 
Griffin  v.  Kentucky  Ins.  Co.,  188. 
Griffin  v.  McKenzie,  229. 
Griffin  v.  Wilcox,  101,  246,  247,  248, 

351- 

Griffing  v.  Gibb,  41,  53,  58. 
Griffith  v.  Bank,  no. 
Griffith  v.  Shipp,  216. 
Griffith  v.  Thomas,  227. 
Grim  v.  Weisenberg  School  District, 

142. 

Grimball  v.  Ross,  128,  229,  336,  337. 
Grimes  v.  Bryne,  209,  225. 
Grimes  v.  Doe,  149. 
Griner,  In  re,  89. 
Griswold  v.  Hepburn,  21,  25,  79. 
Griswold  v.  Pratt,  73. 
Grogan  v.  San  Francisco,  137,  208. 
Grosvenor  v.  Chesley,  213. 
Groton  v.  Hurlburt.  35,  52. 
Grover  &  Baker  S.  M.  Co.  v.  Butler, 

85- 

Grover  v.  Coon,  224. 
Grover  v.  Slaughter,  26,  40. 
Grubbs  v.  Harris,   215. 
Guild  v.  Rogers,  209,  222. 
Guillote  v.  New  Orleans,  357, 
Gunn  v.  Barry,  124,  226. 
Gut  v.  State,  116. 


Gutierrez,  Ex  parte,  118. 
Guy  v.  Hermance,  58. 


Hackley  v.  Geraghty,  239. 
Hadfield  v.  New  York,  221. 
Haggin  v.  Squires,  285. 
Hague  v.  Powers,  i,  20,  25,  79,  80, 

87- 

Haight  v.  Grist,  23. 

Halderman  v.  Beckwith,  37,  39,  57, 
58. 

Hale  v.  Huston,  333. 

Hale  v.  Ross,  158. 

Hale  v.  Sharp,  333.' 

Hale  v.  Wilder,  306. 

Hall  v.  Boardman,  157,  160. 

Hall  v.  Carey,  187. 

Hall  v.  Hall,  332. 

Hall  v.  Keese,  369. 

Hall  v.  State,  144. 

Hall  v.  Winchell,  157. 

Halley  v.  Hoeffner,  369. 

Hamilton  Avenue,  In  re,  170. 

Hamilton  v.  Dillin,  88. 

Hamilton  v.  Keith,  171. 

Hamilton  v.  Pleasants,  333. 

Hamilton  Company  v.  Massachu- 
setts, 325. 

Hammett  v.  Anderson,  155,  156. 

Hamrick  v.  House,  153. 

Hanauer  v.  Woodruff,   333. 

Hancock  v.  Ritchie,  216. 

Haney  v.  Marshall,  293. 

Haney  v.  Sharp,  273. 

Han  ford  v.  Barb  our,  231. 

Hanford  v.  Obrecht,  23. 

Han.  &  St.  Jos.  Railroad  Co.  v. 
Chacklett,  178. 

Han.  &  St.  Jos.  Railroad  Co.  v. 
Marion,  142. 

Hardeman  v.  Downer,  225,  226,  309. 

Hardy  v.  Waltham,   173,  179. 

Harlan  v.  People,  Si. 

Harlan  v.  Sigler,  216,  217. 

Harlan  v.  State,  330,  333. 

Harness  v.  Green,  284. 

Harris  v.  Shaw,  153. 

Harrison  v.  Mayor,  233,  235. 

Harrison  v.  Young,  170. 

Hart  v.  Cornwall,  179. 

Hart  v.  State,  118 

Hartford  v.  Hartford  Bridge  Co., 
205. 

Hartford  Bridge  Co.  v.  East  Hart- 
ford, 1 66,  189. 


XVI 


TABLE    OF    CASES. 


Hartford  Bridge  Co.  v.  Union  Ferry 

Co.,  166,  337. 
Hartford   Fire    Ins.    Co.    v.    Doyle, 

264. 
Hartford  £    New   Haven   Railroad 

Co.  v.  Crosswell,  195,  196,  199, 

200. 

Hartung  v.  People,  116,  117. 
Hasbrouck  v.  Shipman,  228. 
Hastings  v.  Fowler,  70. 
Hatch  v.  Burroughs,  1 54,  330. 
Havemeymer  v.  Iowa  County,  125. 
Hawkins  et  al.,  In  re,  76. 
Hawkins  v.  Filkins,  124,  329,  330. 
Hawkins  v.  Learned,  76. 
Hawkins  v.  Miss.  &  Tenn.  Railroad 

Co.,  201. 

Hawley  v.  Hunt,  159,  161. 
Hawthorne  v.  Calef.  155. 
Hayburn's  Case,  260,  265. 
Haynes  v.  State,  144. 
Hays  v.  Pacific  Mail  Steamboat  Co., 

46. 

Hazen  v.  Union  Bank,  124,  165. 
Head  v.  Starke,  332. 
Head  v.  University,  151. 
Hedgman  v.  Board,  373. 
Hedgman  v.  State,  380. 
Helfenstein  v.  Cave,  225. 
Helm  v.  First  Nat'l  Bank,  85. 
Hempstead  v.  Reed,  157. 
Henderson    v.    Mayor,    33,    37,   49,  \ 

321. 

Henderson  v.  Railroad  Co.,  201. 
Henkel,  In  re,  226. 
Hennen,  Ex  parte,  257,  258. 
Henry  Brenneman.  In  re,  71. 
Henry  E.  Hayne,  Ex  parte,  243. 
Henry  v.  Lowell,  99,  298,  318. 
Hepburn  v.  Curts,  220. 
Hepburn  v.  Griswold,  80,  87,  355. 
Herbert  v.  Easton,  214,  232. 
Herman  v.  Phalen,  318. 
Herrick  v.  Randolph,  175. 
Herring  v.  Selding,  1 56. 
Hess  v.  Johnson,  113. 
Hess  v.  Warts,  148. 
Hester   v.    Memphis   &   Charleston 

Railroad  Co.,  199. 
Hewitt,  Ex  parte,  225. 
Hewitt  v.  N.  Y.  &  O.  M.  Railroad  ! 

Co.,  193. 

Heyward  v.  Judd,  210,  223,  224. 
Hickland  v.  State,  291. 
Hickman  v.  Jones,  333. 
Hickox  v.  Tallman,  214. 


Hicks  v.  Brown,  158. 

Hicks  v.  Euhartonah,  59,  61. 

Hicks  v.  Hotchkiss,  5,  160. 

Hill  v.  Boyland,  332,  339. 

Hill  v.  Kessler,  226. 

Hill  v.  Low,  298. 

Hill  v.  Smith,  211. 

Hill  v.  State,  342. 

Hill,  J.  J.,  Ex  parte,  335. 

Hinckle  v.  Riffert,  220. 

Hinckley  v.  C.  N.  &  St.  P.  Railroad 
Co.,  193. 

Hinkley  v.  Marean,  156,  158. 

Hinson   v.   Lott,   47,  48,   232,  333, 
234- 

Hintrager  v.  Bates,  80,  87. 
j  Hiriart  v.  Ballou,  359. 
|  Hitchcock  v.  Aicken,  3. 

Hoag  v.  Hunt,  1 57. 

Hodgson  v.  Millward,  264,  268. 

Hoffman  v.  State,  348. 
|  Hogg  v.  Canal  Co.,  127. 
|  Holcomb  v.  Tracy,  229. 
!  Holden  v.  Joy,  65,  301. 
i  Holland  v.  Dickerson,  224. 

Holland  v.  Pack,  66. 

Hollida  v.  Hunt,  85. 
j  Hollingsworth  v.  Virginia,  365. 

Hollister  v.  Union  Co.,  138,  346. 

Holloway  v.  Sherman,  223. 

Holly  Springs  S.  &  J.  Co.  v.  Mar- 
shall, 174,  327. 

Holman  v.  Bank,  123. 

Holmes  v.  Holmes,  143. 

Holmes  v.  Jennison,  2,  241,  254,  25 5, 

317. 

Holmes  v.  Lansing,  209,  217. 
Holt  v.  State,  118. 
Holyoke  v.  Lyman,  192. 
Home  Ins.  Co.  v.  Augusta,  145. 
Home  of  the  Friendless  v.   Rouse,. 

163,  172,  173. 
Homer  v.  Brown,  336. 
Homestead  Cases,  124,  225,  309,  318, 

33°- 

Hood  v.  Maxwell,  330. 
Hopkins  v.  Jones,  215,  223. 
Hoppins  v.  Jenckes,  13. 
Horn  v.  Lockhart,  332,  333. 
Home  v.  Green,  324,  326. 
Horton,  Eli,  In  re,  74. 
Hospital  v.  Philadelphia,  174. 
Houghton  v.  Maynard,  1 59. 
Houston  v.  Deloach,  332. 
Houston  v.  Jefferson   College,   153, 
187,  192. 


TABLE    OF    CASES. 


XV11 


Houston  v.  Moore,  5,  7.  90,  91,  92, 
262,  272,  273,  317,  320,  336,  337, 

338. 

Howard  v.  Bugbee,  223. 
Howard  v.  Insurance  Co.,  185. 
Howe  v.  Carpenter,  23. 
Howell  v.  State,  46,  322,  233. 
Howes,  David,  In  re,  14. 
Howze  v.  Howze,  225. 
Hoyt  v.  Benner,  23. 
Hubbard  v.  Callahan,  152. 
Hubbard  v.  Northern  Railroad  Co., 

261. 

Hubbard  v.  Supervisors,  325. 
Huber  v.  Reily,  273,  350,  351,  364. 
Hubert  v.  Horter,  76. 
Hudspeth  v.  Davis,  227. 
Hughes,  Wm.  H.,  Ex  parte,  251,  296. 
Hughes  v.  Davis,  285. 
Hughes  v.  Cannon,  141. 
Hughes  v.  Stinson,  333. 
Humphrey  v.  Pegues,  132,  172,  174. 
Humphreys  v.  U.  S.,  260. 
Hunsaker  v.  Borden,  135. 
Hunt  v.  Gregg,  221. 
Hunt  v.  Palao,  100. 
Hunt  v.  State,  62. 
Hunter  v.  Cobb,  22,  23. 
Hunt'er  v.  Martin,  278. 
Huntington  v.  Bishop,  358. 
Huntington  v.  Central  Pac.  Railroad 

Co.,  327. 

Huntington  v.  Texas,  331. 
Huntress,  The,  269,  270,  360. 
Huntsman  v.  Randolph,  133. 
Huntzinger  v.  Brock,  229. 
Husted,  Ex  parte,  335. 
Hutchinson  v.  Thompson,  52. 
Hyatt  v.  Esmond,  190. 
Hyatt  v.  McMahon,  188,  190. 
Hyatt  v.  Whipple,  190. 
Hyde  v.  Planters'  Bank,  217. 
Hyde  v.  State,  144. 
Hyer  v.  Wave,  41. 
Hylton  v.  U.  S.,  104,  105,  337. 


111.   Cent.   Railroad   Co.  v.  County, 

132,  172. 

111.  Cent.  Railroad  Co.  v.  U.  S.,  302. 
Illinois  College  v.  Cooper,  195. 
Ill  Railroad  Co.  v.  Beers,  197. 
111.  Railroad  Co.  v.  Zimmer,  196,  197, 

200. 
111.  &  Mich.  Canal  Co.  v.  Railroad 

Co.,  133,  170. 
B 


1  Impeachment  of  Wm.  W.  Belknap, 

259. 
i  Independent    Insurance  Co.,  In  re, 

75- 
i  Indian    Canon    Road   v.    Robinson, 

170. 
1  Indianapolis  Railroad  Co.  v.  Kerche- 

val,  183. 

i  Ingersoll  v.  Skinner,  235. 
|  Inglehart  v.  Wolfin,  224. 
j  Ingraham  v.  Dooley,  214. 
j  Inman  Steamship  Co.  v.  Tinker,  237, 

239- 

|  Ins.  Co.  v.  Comstock,  358. 
I  Ins.  Co.  v.  New  Orleans,  373. 
;  International   Assurance   Society  V, 
Commissioners,  324. 

Iowa  City  v.  Foster,  144. 

Iron  City  Bank  v.  Pittsburgh,  188, 
191,  193. 

Irvin  v.  Turnpike  Co.,  196,  199,  200. 

Irvine  v.  Armstead,  331. 
I  Irvine  v.  Marshall,  301. 
|  Irvine,  In  re,  70,  71. 
\  Isley  v.  Merriam,  160. 
|  Iverson  v.  Shorter,  223,  230. 
i 

j  Jack  v.  Martin,  5,  298,  316,  318. 
!  Jackson  v.  Butler,  119,  216,  293. 
j  Jackson  v.  Goodell,  65. 
I  Jackson  v.  Lamphire,  141,  229. 
i  Jackson  v.  Porter,  305,  306 
|  Jackson  v.  Rose,  262,  272,  273. 
1  Jackson  v.  The  Magnolia,  271. 
|  Jackson  v.  Winn,  140. 
!  Jackson  v.  Wood,  65,  341,  346,  357. 
!  Jacob  Spangler,  Ex  parte,  335. 
acobs  v.  Smallwood,  152,,  210,  227. 
acoway  v.  Denton,  88,  124,125, 154. 
acques  v.  Marchand,  155. 
ames  Egan,  Ex  parte,  248. 
ames  P.  Martin,  Ex  parte,  45,  236. 

Barnes  River  Co.  v.  Thompson,  180. 
i  James  Romaine,  Ex  parte,  295. 

James  v.  Comm.,  342,  361. 

James  v.  Stull,  222. 
j  Jane  v.  Comm.,  346, 
|  January  v.  January,  228. 
|  Jefferson  Bank  v.  Skelly,  132,  173. 
j  Jefferson  Davis,  Ex  parte,  379. 
!  Jemison  v.  Planters'  Bank,  217. 

Jeremiah  Ferguson,  Ex  parte,  335. 

John  Baxter,  Ex  parte,  103. 
I  John  L.  Clark,  Ex  parte,  296. 
j  John  Merryman,  Ex  parte,  101,  258. 


TABLE    OF    CASES. 


John  R.  Platt,   In  the  matter  of,  344,  |  Judd,  Bela,  In  re,  74. 

Judd  v.  Ives,  74. 
Judson  v.  State,  172,  173. 
Julia  v.  McKinney,  288. 
Justices  v.  Murray,  358,  361. 


John  T.  Phillips,  349. 


John  White,  Ex  parte,  297. 
John  W.  A.  Smith,  In  re,  72. 
John  W.  Smith,  In  re,  72. 
John  Ziegenfuss,  In  re,  73. 
Johnson  v.  Bentley,  211. 
Johnson  v.  Bond,  229. 
Johnson  v.  Comm.,  132,  172. 
Johnson  v.  Drummond,  237,  240. 
Johnson  v.  Duncan,    101,  122,   209, 

210,  211,  212,  227. 

Johnson  v.  Gordon,  264,  278. 

Johnson  v.  Higgins,  210,  228. 

Johnson  v.  Johnson,  66. 

Johnson  v.  Jones,  248,  352. 

Johnson  v.  Mclntosh,  305,  306,  307. 

Johnson  v.  Monell,  264. 

Johnson  v.  Thompkins,  298. 

Johnson  v.  Winslow,  210. 

Johnston  v.  Riley,  297. 

Joice  v.  Scales,  284,  286. 

Jolly  v.    Draw  Bridge  Co.,   52,   53, 

57- 

Jones'  Appeal,  143. 
Jones  v.  Brandon.  225. 
Jones  v.  Crittenden,   130,  131,  210, 

227,  237. 

Jones  v.  Eisler,  63. 
Jones  v.  G.  &  C.  Railroad  Co.,  183. 
Jones  v.  Harker,  80,  87. 
Jones  v.  Horsey,  162. 
Jones  v.  Keep,  23. 
Jones  v.  Laney,  65. 
Jones  v.  McMahon,  227. 
Jones  v.  People,  238. 
Jones  v.  Seward,  247. 
Jones  v.  Van  Zandt,  298. 
Jones  v.  Walker,  255,  312,  313,  314. 
Jordan  v.  Cobb,  232. 
Jordan  v.  Dayton,  85. 
Jordan  v.  Dobson,  83,  84. 
Jordan  v.  Hall,  75. 
Jordan,  In  re,  71,  72. 
Joseph  De  Cabrera,  Ex  parte,  261. 
Joseph  Smith,  297. 
Joslyn  v.  Pacific  Mail  Steamship  Co., 

203. 

Jourdan  v.  Barrett,  301,  302. 
Journeay  v.  Gardner,  162. 
Journeay  v.  Gibson,  141. 
Joy  v.  Jackson  &  Mich.  Plank  Road, 

197. 

Joy  v.  Thompson,  220. 
Juan.  Leon,  Ex  parte.  273. 


Kansas  Indians,  The,  60,  62,  63. 
Karrahoo  v.  Adams,  66. 
Kauffman  v.  Oliver,  298. 
Kean  et  al ,  In  re,  72. 
Kearney,  Ex  parte,  277. 
Kearney  v.  Taylor,  142. 
Keeler,  Geo.  B.,  In  re, 
Keene  v.  Mould,  70,  71. 
Keller  v.  State,  235. 
Kellogg  v.  Union  Co.,  43,  54. 
Kelly  v.  Crapo,  161. 
Kelly  v.  Drury,  159. 
Kelly  v.  McCarthy,  142,  143. 
Kemp,  Nicholas,  In  re,  103. 
Kendall  v.  Badger,  158. 
Kendall  v.  U.  S.,  242,  243,  261. 
Kennett  v.  Chambers.  260. 
Kenowsha,  Rockford  &  Rock  Island 
Railroad  Co.  v.  Marsh,  198,  202. 
Keokuk  v.  Packet  Co.,  239. 
Keough  v.  McNitt,  119,  228. 
Keppel  v.  Petersburg  Railroad  Co.> 

331- 

Kerr,  In  re,  72,  180. 

Kierski  v.  Matthews,  80,  87. 

Klmball  v.  Taylor,  251. 

Kimberly  v.  Ely,  1 56. 

Kimbro  v.  Bank,  216. 

Kincaid  v.  Francis,  290,  293. 

King  v.  Dedham  Bank,  123. 

King  v.  Stevenson,  1 59. 

King  v.  W.  &  W.  Railroad  Co.,  213. 

Kingsley  v.  Cousins,  218. 

Kinney  v.  Sherman,  216. 

Kirtland  v.  Molton,  214. 

Kittredge  v.  Warren,  71. 

Klaus  v  City,  215. 

Klein,  Edw.,  In  re,  69. 

Kleinschmidt  v.  Dunphy,  359,  360, 
361. 

Kneedler  v.  Lane,  19,  87,  89,  90,  91, 
101,  338,  362. 

Knight  v.  Dorr,  216. 

Knowles,  Frank,  Ex  parte,  67,  68. 

Knox  v.  Lee.  331. 

K.  N.  P.  Co.  v.  Keokuk,  238,  239. 

Kohl  v.  U.  S.,  356. 

Kansas  Pacific  Railroad  Co.  v.  Mow- 
er, 183. 


TABLE    OF    CASES. 


XIX 


X.  &  P.  Railroad  Co.  v.  Palmer,  201. 
Krebs  v.  State  Bank,  215. 
Kulp  v.  Ricketts,  264,  268. 
Kumler  v.  Traber,  179. 
Kunkle  v.  Franklin,  142. 
Kunzler  v.  Kohaus,  2,  69,  70. 
Kyle  v.  Jenkins,  114,  119. 
Kynoch  v.  Ives,  269,  270. 


Lain  v.  Shepardson,  147. 

Lake  View  r.   Rose  Hill  Cem.  Co., 

182,  185. 

Lalor  v.  Wattles,  70. 
Lampton  v.  Bank,  1 10. 
Landon  v.  Litchfield,  123,  175,  178, 

179. 

Lang  v.  Randall,  69. 
Lange,  Ex  parte,   349. 
Lanman  v.  Lebanon  Valley  Railroad 

Co.,  200. 

Lans  v.  Randall,  69. 
Lansing  v.  County,  221. 
Lansing  v.  Smith,  138. 
Lapsley  v.  Brashears,  121,  129,  131, 

209,  210,  228,  337,  364. 
Larrabee  v.  Talbott,  74,  161. 
Latham  v.  Clarke,  232. 
Latham  v.  Smith,  23. 
Latham  v.  U.  S.,  80. 
Lathrop  v.  Brown,  216. 
Latimer  V,  Poteet,  305. 
Lavender  v.  Goswell,  74,-  79. 
Lawrence,  In  re,  133,  143. 
Lawrence  v.  Miller,  220. 
Lawson  v.  Miller,  333. 
Layton  v.  New  Orleans,  205. 
Leach  v.  Smith,  1 54. 
League  v.  De  Young,  153,  225,  318. 
Leak  v.  Commissioners,  151,  232. 
Leathers  v.  Shipbuilders'  Bank,  215, 

219. 

Le  Bur,  Ex  parte,  335. 
Lee  Co.  v.  Rogers,  125. 
Lee  v.  Davis.  1 52. 
Lee,  Oliver  &  Co.'s  Bank,  Ex  parte, 

124,  189,  194. 
Lee  v.  Tillotson,  358. 
Legal  Tender  Cases,   6,  20,  80,  81, 

87,  96,  100,  337,  355. 
Leitensdorter  v.  Webb,  249,  250,  262. 
Lemmon  v.  People,  29,   36,  38,  288, 

289,  290. 

Leonard,  The,  270. 
Leonard  v.  The  Volunteer,  270. 
Le  Roy  v.  East  S.  C.  Railway,  173. 


Lessley  v.  Phipps,  225. 

Levering  v.  Washington,  1 50. 

Levi  v.  Thompson,  302. 

Levison  v.  Krohne,  227. 

Levison  v.  Norris,  227. 

Lewis  v.  Brackenridge,  222. 

Lewis  v.  Broadwell,  229. 

Lewis  v.  Elmendorf,  13. 

Lewis  v.  Harbin,  229. 

Lewis  v.  Lewis,  227. 

Lewis  v.  McElwain,  2-11. 

Lewis  v.  Randall  23. 

Lexington  v.  Aull,  175. 

License  Cases,  37,  47,  232,  233,  234, 

235,  320. 

License  Tax  Cases,  22,  23. 
Lick  v.  Faulkner,  80,  87. 
Lincoln  v.  Smith,  38,  342. 
Lincoln  Bank  v.  Richardson,  186. 
Lindsey  v.  Burbridge,  228. 
Linn  v.  State  Bank,  no,  in. 
Lin  Sing  v.  Washburn,  27,  28,  30,  50, 

319 

Linthicum  v.  Fenly,  76. 

List  v.  Wheeling,  136,  150. 

Little  v.  Barreme,  246. 

Little  v.  Gould,  83. 

Liverpool  Ins.  Co.  v.  Massachusetts, 

45- 

Livingston  v.  Hollenbrock,  146. 
Livingston  v.  Jefferson,  263. 
Livingston  v.  Mayor,  341,  346,  358. 
Livingston  v.  Moore,   140,  213,  215, 

341,  358. 

Livingston  v.  Van  Ingen,  32,  83,  85. 
L.  &  N.  Railroad  Co.  v.  Davidson, 

207. 

Lobdell  v.  Fowler,  333. 
Lobdell  y.  Hall,  63. 
Lobrano  v.  Nelligan,  155. 
Locke  v.  Dane,  115,  141,  142. 
Locke  v.  New  Orleans,  1 1 5. 
Lockett  v.  Usry,  210. 
Lockhart  v.  Yeizer,  229. 
Lockington's  Case,  335. 
Logwood  v.  Planters'  Bank,  124. 
Lonas  v.  State,  375. 
Long,  Ex  parte,  298. 
Longfellow  v.  Patrick,  209. 
Longis  v.  Creditors,  74. 
Lord  v.  Ghadwick,  115. 
Lord  v.  G.   N.  &  P,  Steamship  Co., 

Lord  v.  Litchfield,  175. 
Lord  v.  Thomas,  136. 
Loring  v.  State,  146. 


XX 


TABLE    OF    CASES. 


Lothrop  v.  Stedman,,  190. 

Lott  v.  Cox,  240. 

Lott  v.  Mobile  Trade  Co.,  240. 

Lott  v.  Morgan,  239. 

Loud  v.  Pierce,  70,  71. 

Loughborough  v.   Blake,    8,  21,  92, 

104,  105. 

Louisa  Simpson,  The,  243. 
Louisville  C.  &   L.  Railroad  Co.  v. 

Comm.,  173. 
Louisville   Railroad   Co.  v.    Letson, 

366. 
Louisville   Turnpike   Co.  v.   Louns- 

bury,  1 86. 

Louisville  v.  University,  149,  165,  205. 
Low  v.  Austin,  232,  233. 
Low  v.  Commissioners,  41,  279,  357, 

360. 

Lowry  v.  Francis,  128. 
Lowry  v.  McGhee,  112. 
Lowry  v.  Weaver,  62. 
Lucas  v.  Sawyer,  143. 
Lucius  Eames,  In  re,  73. 
Lunt  v.  Hunter,  58. 
Luther  v.  Borden,  308,  309. 
Lyman  v.  B.  &  W.  Railroad  Co.,  183. 
Lynch  v.  Hoffman,  114,  119. 
Lytle  v.  Whicher,  369. 


Macaulay  v.  Kellogg,  367. 

Mackey  v.  Coxe,  66. 

Madison  &  Ind.  Railr'd  Co.  v.  White- 
neck,  183. 

Maenhut  v.  New.  Orleans,  136. 

Magee  v.  Young,  143. 

Mager  v.  Grima,  235. 

Magill  v.  Parsons,  98,  268. 

Magruder  v.  Marshall,  230. 

Maguire  v.  Card,  270. 

Maguire  v.  Maguire,  143. 

Malony  v.  Fortune,  223. 

Maltbie  v.  Hotchkiss,  76,  78. 

Maltby  v.  Cooper,  229. 

Maltby  v.  Reading  £  Col.  Railroad 
Co.,  145,  146. 

Manly  v.  Raleigh,  205. 

Manning  v.  State,  116. 

Marbury  v.  Madison,  3,  4,  242,  243, 
257,  275,  311,  336. 

Margaret,  The,  360. 

Marietta  &  Cin.  Railroad  Co.  v.  El- 
liott, 187,  199,  200. 

Marietta  v.  Fearing,  204. 

Mark  Strouse,  Ex  parte,  344,  349. 

Markoe  v.  Hartranft,  327. 


Marks  v.  Donaldson,  208. 

Marsh  v.  Burroughs,   124,  148,  154, 

3°9- 

Marsh  v.  Putnam,  1 56, 
Marshall  v.  Donovan,  378. 
Marshall  v.  Grimes,  55. 
Martha  Ann,  The,  58. 
Martha  Washington,  The,  30. 
Martin,  Ex  parte,  263,  274,  298,  359. 
Martin,  James  P.,  Ex  parte,  45. 
Martin  v.  Berry,  73,  74,  77. 
Martin  v.  Hewitt,  331,  333. 
Martin  v.  Horton,  333. 
Martin  v.   Hunter,  i,  2,  5,  19,  262, 

264,  265,  266,  272,  273,  277,  278, 

279,  316,  329,  339,  362. 
Martin  v.  Mott,  90. 
Martin  v.  Penn.  &  Geo.  Railroad  Co., 

201. 

Martin  v.  Snowden,  22,  23,  104,  351. 
Martin  v.  Somerville  Co.,  222. 
Martin  v.  State,  116. 
Martin  v.  Waddell,  36. 
Martmetti  v.  Maguire,  83. 
Mary  Washington,  The,  270. 
Mason  v.  Boom  Company,  263. 
Mason  v.  Haile,  217. 
Mason  v.  Nash,  72. 
Mass.  Gen'l  Hospital  v.  State  Mutual 

Life  Assurance  Co.,  192. 
Master  v.  Pratts,  42,  239. 
Matheny  v.  Golden,  132,  173,  179. 
Mather  v.  Bush,  155. 
Mather  v.  Chapman,  141. 
Mathews  v.  Rucker,  232. 
Mathing  v.  Golden,  125. 
Matthews  v.  Ray,  67. 
Matthews  v.  Zane,  14. 
Matthewson  v.  Weller,  225. 
Maxey  v.  \Vise,  141. 
Mayer  v.  Hillman,  76. 
Maynard    v.    Newman,    21,    25,    79,. 

80. 

Maynes  v.  Moore,  215. 
Mayor  v.  Bait.  &  Ohio  Railroad  Co., 

174,  175,  178. 

Mayor  v.  Cooper,  261,  264,  267. 
Mayor  v.  Miln,  49,  318,  320,  321. 
Mayor  v.  N.  &  W.  Railroad  Co.,  190, 

193. 
|  Mayor  v.  Pitts.  &  C.  Railroad  Co., 

189. 

|  Mayor  v.  Proprietors,  178. 
i  Mayor  v.  Second  Ave.  Railroad  Co., 

149. 
Mayor  v.  State,  in,  205. 


TABLE    OF    CASES. 


XXI 


Maysville  Turnpike  Co.  v.  How.  167. 
McCall  v.  McDowell,  19,  101,  102. 
McCardle,  Ex  parte,  277. 
McCarty  v.  Gibson,  161,  162. 
McCaulay  v.  Kellogg,  367. 
McCauley  v.  Brooks,  129,  153. 
McClung  v.  Silliman,  336. 
McClure  v.  Owen,  125. 
McClurg  v.  Kingsland,  84. 
McComb  v.  Board,  135. 
McConnell  v.  Wilcox,  93,  300. 
McCormick  v.  Alexander,  213. 
McCormick  v.  Humphrey,  264. 
McCormick  v.  Pickering,  70,71. 
McCormick  v.  Rusch,  228. 
McCoy  v.  Washington,  in.  140. 
McCracken   v.    Hayward,   121,   122, 

129,  130,  211,  221. 
McCracken  v.  Poole,  in. 
McCracken  v.  Todd,  62. 
McCray  v.  Junction   Railroad   Co., 

196,  200. 

McCready  v.  State,  58,  294. 
McCready  v.  Wilcox,  102. 
McCreary  v.  State,  218. 
•McCulloch  v.  State,  5,  7,  17,  18, 

97,  98,  99,   100,  312,  316,  - 

321,    322,    323,    325,    326,   329, 

362. 

McElmoyle  v.  Cohen,  283,  284,  286. 
McElwain  v.  Mudd,  154,  369. 
McFarland  v.  Butler,  119,  216,  293. 
McFarland  v.  McKnight,  56. 
McFarland  v.  State  Bank,  109,  no. 
McGar  v.  Nixon,  333. 
McGavish  v.  State,  174. 
McGee  v.  Mathis,  128,  145. 
Mclntire  v.  Wood.  261. 
Mclntyre  v.  Ingraham,  169,  217. 
McKeen  v.  Northampton,  151. 
McKeithen  v.  Terry,  226. 
McKenny  v.  Compton,  229. 
McKim  v.  Voorhies,  336. 
McKim  v.  Willis,  160. 
M'Kinney  v.  Carroll,  139,  230,  231. 
McLaren  v.  Pennington,  188. 
McLeod  v.  Burroughs,  166. 
McLeod  v.  Sav.  A.  &  G.  Railroad 

Co.,  170. 

McMechen  v.  Mayor,  149. 
McMillan  v.  McNeill,  158. 
McMillan  v.  Sprague,  208,  219. 
McMillen  v.  Anderson,  376,  377. 
McMillen  v.  Boyles,  142. 
McNealy  v.  Gregory,  113,  124,  154. 


McRee  v.  Railroad  Co  ,  170. 
McReynolds  v.  Smallhouse,  43. 
McRoberts  v.  Washburne,  139. 
Mead  v.  Dayton,  161. 
Meade  v.  U.  S.,  354. 
Meador,  Ex  parte,  344,  349,  350. 
Meadow  Dam  Co.  v.  Gray,  202,  204. 
Mechanics'  Bank  v.  Bridges,  325. 
Mechanics'  Bankv.  Debolt,  132,  173. 
Mechanics'  Bank  v.    Thomas,    132, 

173- 
Mechanics'  Bankv.  Union  Bank, 2 50, 

261. 

(  Medbury  v.  Hopkins,  156. 
|  Meekins,  Kelly  &  Co.  v.  Creditors,  74. 
;  Melcher  v.  Boston,  323. 
Menges  v.  Wertman,  141. 
|  Mercer's  Case,  217. 
Merchants'  Ins.  Co.,  In  re,  75. 
I  Merryman,  John,  Ex  parte,  101,  258. 
|  Metcalf  v.  St.  Louis,  39. 
Metropolitan  Bank  v.  Van  Dyck,  3, 
4,  5,  1 8,  19,  20,  25,  79,  80,  87, 
90,  96,  98,  99,   100,   103,   337, 

355- 
Metropolitan   Board   v.   Barrie,   38, 

144. 

Metropolitan  Railroad  Co.  v.  High- 
land Railway,  190. 
Metzger,  In  re,  313. 
Michigan  Bank  v.  Hastings,  163. 
Michigan   Central   Railroad    Co.    v. 

Slack,  24,  355. 

Micou  v.  Tallassee  Bridge  Co  ,  170. 
Middlesex  Turnpike  Corporation  v. 

Locke,  199. 
Middlesex  Turnpike  Corporation  v. 

Swan,  198,  199,  201. 
Middlesex  Turnpike  Corporation  v. 

Walker,  201. 
Milan  &  R.  Plank  Road  Co.  v.  Hus- 

ted,  132,  172,  173. 
Miles  v.  King,  141. 
Millar  v.  State,  63. 
Miller  v.  Comm.,  229. 
Miller  v.  Gould,  333. 
Miller  v.  Little,  301. 
Miller  v.  McQuerry.  298,  359. 
Miller  v.  Moore,  216. 
Miller  v.  New  York,  5J. 
Miller  v.  Railroad  Co.,  191,  194. 
Miller  v.  State,  189,  192. 
Miller  v.  U.  S.,  86,  87,  355,  357,  360. 
Milligan,  Ex  parte,  6,  247,  248,  279, 

357- 


XXII 


TABLE    OF    CASES. 


Milligan  v.  Hovey,  100. 
Mills  v.  Duryea,  284. 
Mills  v.  St.  Clair,  55,  166. 
Mills  v.  Williams,  205. 
Milne  v.  Huber,  210,  21 1. 
Milner  v.  Pensacola,  206. 
Milwaukee  v.  Milwaukee,  208. 
Miners'  Bank  v.  U.  S ,  165,  189. 
Minor  v.  Happersett,  309,  373,  375. 
Minot  v.  P.  W.  &  B.  Railroad  Co., 

45,  173,  174.  • 

Mintzer  v.  Montgomery,  326. 
Miss.  C.  Railroad  Co.  v.  State,  331. 
Miss.  River  Telegraph  Co.  v.  First 

National  Bank,  262. 
Mitchell  v.  Burlington,  125. 
Mitchell  v.  Cothrans,  216. 
Mitchell  v.  Lenox,  284. 
Mitchell  v.  Manuf.  Co.,  71. 
Mitchell  v.  Rome  Railroad  Co.,  198. 
Mitchell  v.  Steelman,  26,  28,  30,  95, 

3I9- 

Mitchell  v.  United  States,  305,  307. 
Mobile  Railroad  Co.   v.  State,  133, 

189,  195,  338. 

Mobile  School  Com.  v.  Putnam,  206. 
Moffat  v.  Soley,  261. 
Mohawk  Bridge  Co.  v.  Railroad  Co., 

170. 
Monongahela     Navigation    Co.     v. 

Coone,  151,  187,  188,  189. 
Monroe  Savings  Bank  v.  Rochester, 

325. 

Montello,  The,  35,  36. 
Montgomery  v.  Elston,  324,  326. 
Montgomery  v.  Galbraith,  217. 
Montgomery  v.  Kasson,  137. 
Montpelier  Academy  v.  George,  163, 

165. 

Montpelier  v.  East  Montpelier,  207. 
Moor  v.  Veazie,  31,  32,  33,  34,  57,  59. 
Moore  v.  Fowler,  123. 
Moore  v.  Illinois  Central  Railroad 

Co.,  124,  172. 
Moore  v.  Martin,  224. 
Moore  v.  Mayor,  143. 
Moore  v.  People,  3175.319. 
Moore  v.  State,  185. 
Morford  v.  Unger,  205. 
Morgan  v.  Dudley,  68. 
Morgan  v.  King,  '57. 
Morgan  v.  Louisiana,  179. 
Morgan  v.  McGhee,  66. 
Morgan  v.  Neville,  293. 
Morgan  v.  Parham,  46. 


Morrill  v.  State,  47. 

Morris  v.  People,  207. 

M.  O.  &  R.  R.  Railroad  Co.  v.  Caster^ 
201. 

Morse  v.  Goold,  209,  210,  225. 

Morse  v.  Hovey,  69,  70. 

Morse  v.  Ins.  Co.,  264. 

Morse  v.  Rice,  217,  218. 

Morton  v.  Granada  Academy,  208. 

Morton  v.  Rutherford,  149. 

Morton  v.  Skinner,  296. 

Moses  Du  Puy,  In  re,  253. 

Moses  v.  Kearney,  153. 

Moses  Taylor,  The,  266,  272. 

Mott  v.  Penn.  Railroad  Co.,  132,  172.. 
I  Motts  v.  Bennett,  360. 

Mount  Pleasant  v.  Clutch,  292. 

Mowrey  v.  Ind  &  Cin.  Railroad  Co.* 
200. 

Mudge  v.  Commissioners,  169. 

Mulligan  v.  Corbins,  138. 

Mumford  v.  Wardwell,  58. 

Mumma  v.  Potomac  Co.,  187,  i88t. 

Mundy  v.  Monroe,  211,  223. 

Municipality  v.    Commercial   Bank, 

177. 

I  Municipality  v.  Pease,  48,  238. 
|  Municipality  v.  State  Bank,  132,  172. 
|  Municipality  v.  Wheeler,  1 1 5. 
I  Munn  v.  People,  376. 
!  Munn  v.   Illinois,   39,  106,  376,  377, 

378. 

;  Murch  v.  Tomeer,  63,  66. 
j  Murdock  v.  Memphis,  277. 
!  Murphy,  Wm.,  In  re,  103. 
|  Murphy  &  Glover  Cases,  113,  119. 

Murphy  v.  Northern  Trans.  Co.,  28. 

Murphy  v.  People,  279,  341,  346,357- 

Murray  v.  Hoboken  Co.,  97,  260,  266, 

344»  35o»  351. 

Murray  v.  McCarty,  287. 

Murray  v.  Patrie,  264. 

Murray  v.  Wooden,  59. 

M.  W.  &  M  Plank  Road  Co.  v.  Rey- 
nolds, 193. 

Myrick  v.  Battle,  126,  152. 


Naff  v.  Crawford,  333. 

Nat.  Bank  v.  Comm.,  322,  325,  327. 

Nat.  Bank  v.  Mayor,  326. 

Nathan  v.  Louisiana,  45.  323. 

Neaderhouser  v.  State,  34. 

Neass  v.  Mercer,  215. 

Ned,  The,  87. 


TABLE    OF    CASES. 


XX111 


Neil  v.  State,  127. 

Neilson  v.  Garza,  236. 

Nellie  Smith,  Ex  parte,  378. 

Nelson  v.  Allen,  139. 

Nelson  v.  People,  317,  320. 

Nelson  v.  V.  &  C.  Railroad  Co.,  181, 

182,  183. 

Nesbit  v.  Greaves,  76. 
Nevitt  v.  Bank,  130,  187. 
New  Albany  &   Salem  Railroad  Co. 

v.  McNamara,  218. 
New  Albany  &  Salem  Railroad  Co. 

v.  Tilton,  181,  183. 
Newark  City  Bank  v.  The  Assessor, 

324- 
Newcastle  Railroad  Co.  v.  Peru  & 

Ind.  Railroad  Co.,  180. 
New  Haven  v.  City  Bank,  177. 
New  Haven  v.  Sheffield,  175. 
New  Jersey  Co.  v.  Merchants'  Bank, 

270. 

New  Orleans  v.  Cordeviolle,  115. 
New  Orleans  v.  Holmes,  222. 
New  Orleans  v.  Turpin,  145. 
New  Orleans  C.  &  N.  Co.   v.   New 

Orleans,  231. 
New  Orleans  J.  &  G.  N.  Railroad 

Co.  v.  Harris,  195,  200. 
New  Orleans  Railroad  Co.  v.  Harris, 

195. 

New  York  Indians,  62. 
New  York  v.  Dibble,  61. 
New  York  v.  Staples,  49. 
Newcomb   v.  Smith,    350,  352,  353, 

354.  355- 

Newell  Smith,  Ex  parte,  357. 
Newkirk  v.  Chaperon,  210. 
Newland  v.  Marsh,  229. 
Newmarket  Bank  v.  Butler,  1 58,  1 59. 
Newport  v.  Taylor,  36,  55. 
Newton  v.  Commissioners,  153. 
Newton  v.  Tibbatts,  217. 
Nicholas  Kemp,  In  re,  101,  103,  247, 

248,  259,  346. 
Nichols  v.  Bertram,  171. 
Nichols  v.  N  H.  &N.  Co.,  178. 
Nichols   v.  Som.  &   Ken.    Railroad 

Co.,  167,  183. 
Nock  v.  U.  S.,  260. 
Noel  v.  Ewing,  142,  143. 
Nones  v.  Edsall,  12,  13. 
Norris  v.  Abingdon  Academy,  163. 
Norris  v.  Androscoggin  Railroad  Co., 

183- 
Norris  v.  Boston,  40,   49,   125,  318, 

321. 


Norris  v.  Doniphan,  280,  352,  353. 

Norris  v.  Newton,  298. 

North  Cape,  The,  240. 

Northeast  Railroad  Co.,  Ex  parte, 
184. 

Northern  Railroad  v.  Concord  Rail- 
road, 1 80. 

Northern  Railroad  Co.  v.  Miller,  202, 
203,  204. 

Northwestern  U.  P.  Co.  v.  St.  Paul, 

239- 
North.  Mo.  Railroad  Co.  v.  Maguire, 

146,  173,  342. 

North  River  Co.  v.  Hoffman,  32. 
North  Yarmouth  v.  Skillings,'2O5. 
Norton  v.  Cook,  158,  159,  162. 
Norton  v.  Pettibone,  141. 
Norwalk  Co.  v.    Husted,    132,    172, 

i?3- 

Nugent,  John,  Ex  parte,  11,  12. 
Nunn  v.  State,  343. 
N.  W.  Fertilizing  Co.  v.  Hyde  Park, 

181,  184 
N".  W.  Union  Packet  Co.  v.  St.  Louis, 

239- 

N.  Y.  Life  Insurance  Co.  v.  Best, 
264. 


Oatman  v.  Bond,  211. 

Ochiltree  v.  Railroad  Co.,  155. 

O'Donnell  v.  Bailey,  175. 

Officer  v.  Young,  186. 

Ogden  v.  Lee,  306,  307. 

Ogden  v.  Saunders,  5,  120,  121,  122, 

123,  124,  125,  155,  156,  158,  284, 
Ohio  &  M.  Railroad  Co.  v.  McClel- 
land, 181,  183. 

Ohio  Trust  Co.  v.  Debolt,  125,  132, 

1 66,  170,  172,  364. 
Olcott  v.  Supervisors,  125. 
Oldens  v.  Hallet,  72,  155,  284. 
Oliver  Lee  &  Co.'s  Bank,  Ex  parte, 

124,  189,  194. 

Oliver  v.  McClure,  210,  224. 

Oliver  v.  Memphis  &   L.  Railroad 

Co.,  172.- 

Oliver  v.  Washington  Mills,  292. 
O.  &  L.  Railroad  Co.  v.  Veazie,  201, 

204. 

Olmstead's  Case,  335,  365. 
Olney  v.  Angell,  286. 
Opinion  of  Justices,  92,  298.  323,  324. 
Ordinary  v.  Central  Railroad  Co.,  177.' 
Oriental  Bank  v.  Freeze,  210,  217, 

218. 


XXIV 


TABLE    OF    CASES. 


Orono,  The.  242. 

Osborn  v.  Bank,   266,  267,  326,  365, 

366. 

Osborn  v.  James,  229. 
Osborn  v.  Nicholson,  154,  369. 
Osborn  v.  U.  S.,  253. 
Osborne  v.  Humphrey,  123,  174,  178, 

179. 

Osborne  v.  Mobile,  45. 
Oswego  Bridge  Co.  v.  Fish,  170. 
Owen  v.  Branch  Bank,  109,  no. 
Owens  v.  Bowie,  161. 
O wings  v.  Speed,  I. 


Pace  v.  Burgess,  106. 
Pacific  Life  Ins.  Co.  v  Soule,  22, 105. 
Pacific  Railroad  Co.  v.  Cass,  176. 
Pacific  Railroad  Co.  v.  Hughes,  197, 

198,  199,  204. 

Pacific  Railroad  Co.  v.  Maguire,  176. 
Pacific   Railroad    Co.   v.   Renshaw, 

202,  204. 

Padelford  v.  Savannah,  47. 
Painter  v.  Ives,  61. 
Palfrey  v.  Boston,  324. 
Palmer  v.  Commissioners,  52. 
Palmer  v.  Goodwin,  1 58. 
Parent  v.  Walmsley,  66. 
Paris  v.  Farmers'  Bank,  175. 
Parker  v.  Metropolitan  Railroad  Co., 

193. 

Parker  v.  Milldam  Co.,  54. 
Parker  v.  Redfield,  175,  179. 
Parker  v.  Shannonhouse,  220. 
Parkham  v.  Justices,  350. 
Parkinson  v.  Scoville,  159. 
Parks  v.  Coffey,  333. 
Parsons  v.  Armor,  361. 
Parsons  v.  Ballard,  337. 
Parsons  v.  Bedford,  358. 
Paschal  v.  Whitsett,  211. 
Passaic  Bridges,  The,  34,  52,  53. 
Passenger  Cases,  2,  21,  22,  27,  28,  29, 

37,  46,  48,  49,  1 01,  107,  236,  316, 

321. 

Paterson  v.  Society,  205. 
Patin  v.  Prejean,  220. 
Patrie  v.  Murray,  279,  358. 
Patterson  v.  Comm.,  85. 
Patterson  v.  Philbrook,  141,  142. 
Paul  v.Virginia,  28,  29,  288,  289,  291. 
Paup  v.  Drew,  147. 
Pawlett  v.  Clark,  128. 
Payaud  v.  State,  109,  in. 
Payne  v.  Baldwin,  164,  169,  337. 


'P.   &  C.   Railroad  Co.  v.  S.  W    P. 

Railroad  Co.,  182. 
Pearce  v.  Patton,  141,  229. 
Peck  v.  Chicago,  39. 
Peete  v.  Morgan,  39,  240. 
Pelton  v.  Platner,  285. 
Pendleton  v.  State,  40,  291. 
Penn.   Railroad  Co.  v.  Comm.,  235, 

239- 

Penn.  Railroad  Co.  v.  N.  Y.  Rail- 
road Co.,  52. 

Penn.  Railroad  Co.  v.  Riblet,  183. 

Penn.  &  Ohio  Canal  Co.  v.  Webb, 
196,  199. 

Penn.  Tel.  Co.  v.  W.  U.  Tel.  Co., 
28,44. 

Penn  v.  Tollison,  330,  333. 

Pennsylvania  v.  Quicksilver  Co.,  274, 
275. 

Penniman  v.  Meigs,  160. 

Pennsylvania  College  Cases,  189, 192, 

195- 

Penny  wit  v.  Eaton,  250. 
Penobscot  Indians  v.  Veazie,  306. 
Penrose  v.  Erie  Canal  Co.,  217,  226. 
Penrose  v.  Reed,  211. 
Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co., 

83. 

People  v.  Assessors,  325,  326. 
People  v.  Auditor,  132,  134,  143,  172. 
People  v.  Babcock,  55. 
People  v.  Barton,  327. 
People  v.  Bond,  130,  136. 
People  v.  Bradley,  326. 
People  v.  Brady,  296,  378. 
People  v.  Brooks,  27,  46,  318. 
People  v.  Burrows,  144. 
People  v.  C.  &  A.  Railroad  Co.,  373. 
People  v.  Carpenter,  217. 
People  v.  Coleman,  47,  233,  235,  292, 

323- 
People   v.   Commissioners,  46,   174, 

208,  323,  324,  325,  327,  338. 
People  v.  Curtis,  255. 
People  v.  Dawell,  4,  283. 
People  v.  Devlin,  144. 
People  v.  Downer,  29,  49,  236. 
People  v.  Fishkill  Plank  Road  Co., 

206. 

People  v.  Fiske,  335. 
People  v.  Gardiner,  324. 
People  v.  Gerke,  254,  255. 
People  v.  Godfrey,  93. 
People  v.  Goodwin,  348. 
People  v.  Hawley,  153. 
People  v.  Hills,  190,  192. 


TABLE    OF    CASES. 


XXV 


People  v.  Imlay,  291,  292. 

People  v.  Jenkins,  39. 

People  v.  Lent,  93,  94. 

People  v.  Lippincott,  144. 

People  v.  Manhattan  Co.,  164. 

People  v.  Marshall,  187, 

People  v.  Mayor,  139. 

People  v.  Merrill,  290,  357. 

People  v.  Mitchell,  207,  215. 

People  v.  Moring,  233,  235,  236.  ' 

People  v.  Morris,  204,  205. 

People  v.  Mortimer,  116. 

People  v.  Naglee,  50,  301,  302,  312, 

316,  321,  364. 

People  v.  Plank  Road,  168,  181. 
People  v.  Platt,  139,  140. 
People  v.  Power,  207. 
People  v.  Quant,  38. 
People  v.  Quigg,  359,  376. 
People  v.  Railroad  Co.,  32,  37,  51,  52. 
People  v.  Raymond,  27,  28,  37,  40, 

44- 

People  v.  Roe,  39. 
People  v.  Roper,  126,  133,  134,  135. 
People  v.  Schenck,  298. 
People  v.  Sheriff,  319. 
People  v.  S perry,  42. 
People  v  Supervisors,  136. 
People   v.  Tax   Commissioners,  47, 

107,  235. 

People  v.  Thurber,  45,  291. 
People  v.  Tillinghast,  136. 
People  v.  Toynbee,  38. 
People  v.  Washington,  67,  312,  369, 

370. 

People  v.  White.  81. 
People  v.  Woods,  136. 
People  v.  Wright,  298. 
Peoria  &  Rock  Island  Railroad  Co. 

v.  Preston,  198. 
Pepin  v.  Lachenmeyer,  333. 
Pepoon  v.  Jenkins,  336. 
Perdicaris  v.  Charleston  Gas-Light 

Co.,  331. 

Perdue  v.  Ellis,  38,  235. 
Pereles  v.  Watertown,  229,  230. 
Perkins,   Carter,  Ex  parte,  11$,  298, 

304,  320,  321. 
Perkins  v.  Rogers,  86. 
Perkins  v.  Watertown,  205 
Permoli  v.  Municipality,  364. 
Perrin  v.  Oliver,  188,  193. 
Perry  v.  Comm.,  116 
Peny  v.  Langley,  73. 
Perry  Manuf.  Co.  v.  Brown,  161. 


Peny  v.  Torrence,  46,  240. 

Pervear  v.  Comm.,  326,  342. 

Peters  v.  Railroad  Co.,  180,  185. 

Peter  Voorhees,  Ex  parte,  296,  297, 
298. 

Phalen  v.  Comm.,  144,  230. 

Phelen's  Case,  335. 

Phelps  v.  Racey,  40. 

Phila.  W.  &  B.  Railroad  Co.  v.  Bow- 
ers, 163,  168,  172,  181,  182. 

Phila.  W.  &  B.  Railroad  Co.  v.  State, 

178. 

!  Phila.  &  W.  Railroad  Co.  v.   State, 
131,  172. 

Philbrickv.  Philbrick,  215. 
I  Phillips  v.  Bloomington,  55. 
i  Phillips  v.  Mayor,  144. 
!  Phoebe  v.  Jay,  149. 
I  Phoenix  Ins.  Co  v.  Comm.,  291. 
!  Pick  v.   C.  &  N.  W.  Railroad  Co., 

I93>  195. 

Pierce  v.  Carskadon,  114,  119. 
:  Pierce  v.  Mill,  218. 
!  Pierce  v.  Somersworth,  180. 
•  Pierce  v.  State,  255,  320. 

Pingry  v.  Washburn,  187. 

Piqua  Bank  v.  Knoup,  278. 
|  Piscataqua  Bridge  Co.  v.  N.  H.  Bridge 
Co.,  179. 

Pitcher  v.  U.  S.,  354. 

Pitkin  v.  Thompson,  157. 

Pittsburgh,  F.  W.  £  C.  Railroad  Co. 

v.  Comm.,  146. 

!  Pittsburgh  v.  Nat'l  Bank,  326. 
'  Pitts.  &  S.  Railroad  Co.  v.  Gazzam, 
199. 

Plank  Road  Co.  v.  Arndt,  199. 
|  Planters'  Bank  v.   Sharp,   129,  130, 

166,  217,  337. 
i  Platenius  v.  State,  133. 
|  Platt  v.  Archer,  75. 
I  Pleasants  v.  Rohrer,  230. 

Flumbly  v.  Comm.,  118. 

Plymouth  v.  Jackson,  165. 
,  Po'e  v.  Duck,  156,  159,  161. 
I  Pol  v.  Hardie,  225. 

Police  Jury  v.  Shreveport,  205,  208. 

Pollard,  Ex  parte,  209,  210,  211,  213, 
227. 

Pollard  v.  Hngan,  34,  36,  58,  299,  300. 

Ponder  v.  Graham,  143. 
;  Pool.  William,  Ex  parte,  30. 

Pool  v.  Young,  130,  211,  228. 

P.  &  O.  Railroad  Co.  v.  Elting,  197, 
198,  199,  201. 


XXVI 


TABLE    OF    CASES. 


Portland  v.  Bangor,  376. 

Portland  Bank  v.  Apthorp,  173. 

Portland  Railroad  Co.  v.  Railway 
Co.,  183. 

Port  Wardens  v.  The  Charles  Mor- 
gan, 42,  239. 

Port  Wardens  v.  The  Martha  J. 
Ward,  36,  42,  239. 

Post  v.  Riley,  155. 

Pott  v.  Supervisors,  134. 

Potter  v.  Kerr,  158,  161. 

Potter  v.  Sturdivant,  154,  219. 

Potts  v.  New  Jersey  Arms  and  Ord- 
nance Co.,  222. 

Potts  v.  Water  Power  Co.,  220. 

Poughkeepsie  &  S.  P.  Plank  Road  v. 
Griffin,  203. 

Powell  v.  Boon,  251,  309,  332,  379. 

Powell  v.  Samrnons,  171. 

Powell  v.  Young,  333. 

Powers  v.  Dougherty  Co.,  115,  123, 
346. 

Pratt  v.  Brown,  151,  303. 

Pratt  v.  Chase,  158. 

Pratt  v.  Jones,  209. 

Presbyterian  Church  v.  New  York, 
140. 

Prescott  v.  State,  346. 

Prigeon  v.  Smith,  232. 

Prigg  v.  Comm.,  2,  5,  99,  263,  274, 
298,  3!6,  3l8»  321. 

Prize  Cases,  The,  86,  87,  242,  246, 
247. 

Proctor  v.  Moore,  158. 

Proprietors  v.  Haskell,  190. 

Proprietors  v.  Laboree,  229. 

Providence  Bank  v.  Billings,  166,  172, 

I73>  363- 

Provident  Ins.  v.  Massachusetts,  325. 
P.  S.  &  P.  Railroad  Co.  v.  B.  &  M. 

Railroad  Co.,  184. 
Pugh  v.  Bussell,  72,  155,  158. 
Pullan  v.  Kinsinger,  351. 


Quackenbush  v.  Daks,  225. 


Rader  v.  S.  R.  District,  219,  221. 
Raguet  v.  Wade,  47,  233,  235,  321. 
Railroad  Commissioners  v.  P.  &  O. 

C,  Railroad  Co.,  184. 
Railroad  Co.  v.  Davis,  346. 
Railroad  Co.  v.  Fuller,  38. 
Railroad  Co.  v.  Heath,  358. 


Railroad  Co.  v.  Johnson,  80,  87. 
Railroad  Co.  v.  Leach,  201. 
Railroad  Co.  v.  Maryland,  44. 
Railroad  Co.  v.  Peniston,  4,  322,  323, 

327. 

Railroad  Co.  v.  Richmond,  230. 
Railway  Co.  v.  Pierce,  264. 
Railway  Comp'y  v.  Whitton,  264. 
Raleigh  &  G.  Railroad  Co.  v.  Reid, 

174- 

Ralston  v.  Lothian,  215. 
Rand  v.  Comm.,  118,  232. 
Randolph,  Ex  parte,  337. 
Randolph  v.  Baldwin,  333. 
Randolph  v.  Good,  114,  119. 
Randolph  v.  Micldleton,  152. 
Ranger  v.  New  Orleans,  136. 
Rank,  In  re,  75. 
Rar.  &  Del.  Railroad  Co.  v.  Del.  £ 

Rar.  Canal  Co.,  40,  44,  339. 
Rathbone  v.  Bradford,  210,  213,  215. 
Raverty  v.  Fridge,  141. 
Rawley  v.  Hooker,  221. 
Ray  v.  Donnell,  298. 
Ray  v.  Thompson,  331,  333. 
Raymond  v.  Merchant,  1 59. 
R.  &  B.  Railroad  Co.  v.  Thrall,  201. 
Read  v.  Frankfort  Bank,   194,  210, 

219. 

Reapers'  Bank  v.  Willard,  185. 
Reardon  v.  Searcy,  226. 
Reavis  v.  Blackshear,  232. 
Reciprocity  Bank,  In  re,  189,  194. 
Rector  v.  Philadelphia,  175. 
Redd  v.  St.  Francis  Co.,  292. 
Reddell  v.  Bryan,  93. 
Red  River  Bridge  Co.  v.  Clarksville, 

1 80. 

Reed  v.  Fullum,  217. 
Reed  v.  Rice,  344. 
Reed  v.  Taylor,  73,  78. 
Reed  v.  Va'ughan,  70. 
Regents  v.  Williams,  126,  127,  128, 

163,  165,  166,  168,  187,  337. 
Reichart  v.  Felps,  351. 
Reiman  &  Friedlander,  In  re,  69,  70., 

71- 

Renner  v.  Bennett,  93,  94. 
Rexford  v.  Knight,  229,  230. 
Reynolds,  In  re,  73,  75. 
Reynolds  v.  Bank,  25,  80,  87. 
Reynolds  v.  Baldwin,  205. 
Reynolds  v.  Geary,  289. 
Reynolds  v.  Hall,  153. 
Reynolds  v.  State,  116. 


TABLE    OF    CASES. 


XXV11 


Reynolds  v.  Taylor,  332. 

Rhode  Island  v.  Massachusetts,  275, 
276. 

Rice  v.  Rock  Island  &  Alton  Rail- 
road Co.,  198. 

Richard  Oliver,  In  re,  102. 

Richards,  Ex  parte,  298. 

Richardson,  In  re,  14,  15. 

Richardson  v.  Brown,  165. 

Richardson  v.  Monson,  151. 

Richland  v.  Lawrence,  205. 

Richmond  Railroad  Co.  v.  Louisa 
Railroad  Co.,  166,  180. 

Riddle  v.  Hill,  333. 

Riddlesbarg-er  v.  McDaniel,  25. 

Riggs  v.  Martin,  211. 

Riston  v.  Content,  1 59. 

Rivers  v.  Moss,  333. 

Roach  v.  Gunter,  1 54. 

Robert  Barnard,  Ex  parte,  356. 

Robert  D.  Bogart,  In  re,  90,  347. 

Robert  v.  Coco,  225. 

Roberts  v.  Skolfield,  270. 

Roberts  v.  Yates,  40. 

Robertson  v.  Shores,  333. 

Robeson  v.  Brown,  213. 

Robinson,  Ex  parte,  85,  257,  335.. 

Robinson  v.  Flanders,  297,  318. 

Robinson  v.  Gardiner,  192. 

Robinson  v.  Howe,  127,  146. 

Robinson  v.  Magee,  120,  121,  122, 
130,  212,  229. 

Robinson  v.  Peyton,  286. 

Roby  v.  Boswell,  123. 

Roby  v.  City,  215. 

Roche  v.  Washington,  66. 

Rochereau  v.  Delacroix,  141. 

Rockwell  v.  Hubbell,  225. 

Rodemacher  v.  Mil.  &  St.  P.  Rail- 
road Co.,  183. 

Rodes  v.  Patillo,  333. 

Rodgers  v.  Bass,  333. 

Rodrigues  v.  Bienvenu,  369. 

Rogers  v.  Railroad  Co.,  52. 

Rohrbacker  v.  Jackson,  38. 

Roosevelt  v.  Cebra,  155. 

Root  v.  McGrew,  226. 

Ropes  v.  Clinch,  313. 

Rose  v.  Buckland,  301. 

Rose  v.  Estudillo,  135. 

Rose  v.  Himely,  260. 

Rosier  v.  Hale,  221. 

Ross  County  Bank  v.  Lewis,  132,173. 

Ross  v.  Jenkins,  114,  119. 

Ross  v.  Riley,  117,  118. 


Roundtree  v.  Baker,  369. 

Rowan  v.  Holcomb,  70. 

Rowan  v.  State,  376. 

Rowe  v.  Granite  Bridge,  35. 

Rowe  v.  Page,  73,  77. 

Rubideaux  v.  Vallie,  63. 

Rudd  v.  Schlatter,  231. 

Rump  v.  Comm.,  68. 

Rundle  v.  Del.  &  R.  Canal  Co.,  151. 

Russell  v.  Cheatham,  71. 

Russell  v.  Lowth,  301. 

Russell  v.  Randolph,  225. 

Ruth,  In  re,  71. 

Rutland  v.  Copes,  124,  213. 

Rutledge  v.  Fogg,  250,  251. 


Sackett  v.  Andross,  69,  70. 

Sadlier  v.  Fallen,  336. 

Sage  v.  Dillard,  190,  192. 

Sala  v.  New  Orleans,  206. 

Salem  Turnpike  Co.  v.  Lyme,  170.. 

Salt  Co.  v.  East  Saginaw,  134. 

Sampeyreac  v.  U.  S.,  352. 

Samples  v.  Bank,  229. 

Sampson  v.  Sampson,  229. 

Sanders  v.  Hillsborough  Ins.  Co.,  185. 

Sanders  v.  Norton,  139. 

Sandusky  Bank  v.  Wilbor,  132,  172, 

173,  174- 

Sanford  v.  Nichols,  345. 
Santo  v.  State,  235. 
Sarah  Jane,  The,  269,  270. 
Sarah  Kennedy,  In  re,  125,  225,  226, 

309. 

Satterleev.  Matthewson,i23,i48,363. 
Savannah  v.  State,  37,  41. 
Savings  Bank  v.  Allen,  149. 
Savings  Bank  v.  Bates,  149. 
Savings  Institution  v.  Mankin,  i86> 

209. 

Savoye  v.  Marsh,  159,  160. 
Sayles  v.  Davis,  24. 
Scearcy  v.  Stubbs,  187. 
Schenectady  £  Saratoga  Plank  Road 

v:  Thatcher,  202,  204. 
Scholey  v.  Rew,  105. 
Scobey  v.  Gibson,  224. 
Scott  v.  Billgerry,  250,  251,  360,  361. 
Scott  v.  Bogart,  160. 
Scott  v.  Jones,  278. 
Scott  v.  Mather,  139. 
Scott  v.  Willson,  39. 
Scott  v.  The  Young  America,  269. 
Scribner  v.  Fisher,  1 59. 


XXV111 


TABLE    OF    CASES. 


Scully  v.  Kirkpatrick,  76. 
Seabury  v.  Field,  58,  300,  301. 
Scale  v.  Mitchell,  223. 
Searight  v.  Stokes,  82. 
Sears  v.  Commissioners,  48,  236,292. 
Selsby  v.  Redlon,  141. 
Sequestration  Cases,  227,  330,  331. 
Sere  v.  Pilot,  303. 
Seton  v.  Hanahan,  285. 
Seymour  v.  Hartford,  175. 
Seymour  v.  State,  292. 
Shaffer  v.  Bolander,  221. 
Shaw  v.  Brown,  291. 
Shaw  v.  Lindsay,  333. 
•Shaw  v.  McCandless,  30. 
Shaw  v.  Robbins,  156. 
Shearon  v.  Henderson,  333. 
Shears  v.  Solhinger,  73,  75. 
Sheehan   v.   Good   Samaritan   Hos- 
pital, 178. 

Sheffield  v.  Parsons,  237,  239. 
Sheldon  v.  Sill,  261. 
Shelor  v.  Mason,  225. 
Shelton  v.  Johnson,  284. 
Shelton  v.  Wade,  1 58. 
She-mid-go-me  sia  v.  State,  62. 
Shepard  v.  Taylor,  232. 
Sheppard  v.  People,  117. 
Sheppardson's  Appeal,  77. 
Sherfy  v.  Argenbright,  333. 
Sheriff  v.  Lowndes,  165. 
Sherlock  v.  Ailing,  37,  38. 
Sherman  v.  Bingham,  71. 
Sherman  v.  Smith,  188,  194. 
Sherrill  v.  Hopkins,  1 59. 
Shields  v.  State,  193. 
Shields  v.  Thomas,  360. 
Shipman,  In  re,  72. 
Shipper  v.  Pennsylvania  Railroad  Co., 

293- 
Shollenberger  v.Brinton,  18,  19,  20, 

25,  79,  80,  87. 

Shorter  v.  Cobb,  88,  1 54,  309. 
Shorter  v.  Smith,  170,  180. 
Shortridge  v.  Macon,  281,  331. 
Shryock  v.  Bashore,  75,  77,  78. 
Shute  v.  Davis,  261. 
Silliman  v.  Hudson  River  Bridge  Co., 

51,  52. 
Silliman  v  Troy  &  W.  Troy  Bridge 

Co.,  52. 

Silver  Lake  Bank  v.  Harding,  285. 
Silverman,  In  re,  69,  70. 
Simeon  Bushnell,  Ex  parte,  298,  334. 
Simmons,  Ex  parte,  298. 
Simmons  v.  Hanover,  142,  210. 


Simmons  v.  State,  145. 

Simpson  v.  Savings  Bank,  77,  219. 

Sims'  Case,  298. 

Sinnot  v.  Davenport,  41,  57,  312,320. 

Sizemore  v.  State,  81,  82. 

Skeen  v.  Monkeimer,  248. 

Slaughter  v.  Comm.,  291,  294. 

Slaughter  v.  Culpepper,  213,  214. 

Slaughter  House  Case,  374. 

Slaughter  House   Cases,    371,    373, 

374- 
Sloan   v.  Mo.  Pacific  Railroad  Co., 

172,  182. 

Small  v.  Hodgen,  230. 
Smedberry  v.  Bentley,  105. 
Smith,  Ex  parte,  274. 
Smith  v.  Allyn,  261. 
Smith  v.  Appleton,  136. 
Smith  v.  Brown,  157,  159. 
Smith  v.  Bryan,  215. 
Smith  v.  Cleveland,  122,  147. 
Smith  v.  Gardner,  159. 
Smith  v.  Healy,  1 56. 
Smith  v.  Levinus,  58. 
Smith  v.  Marston,  49. 
Smith  v.  Mead,  1 56. 
Smith  v.  Merchan-t,  146. 
Smith  v.  Moody,  287,  291,  292,  370. 
Smith  v.  Morrison,  229,  230. 
Smith  v.  Morse,  209,  226. 
Smith  v.  Nelson,  333,  379. 
Smith  v.  New  Orleans,  1 1 1 . 
Smith  v.  Owen,  113. 
Smith  v.  Packard,  229. 
Smith  v.  Parsons,  155. 
Smith  v.  People,  47,  235. 
Smith  v.  Short,  23. 
Smith  v.  Smith,  1 58. 
Smith  v.  State,  32,  36,   56,   58,  270, 

27i,  344- 

Smith  v.  Tucker,  230. 
Smoot  v.  Lafferty,  221. 
Sneider  v.  Heidelberger,  225. 
Snyder  v.  Bank  of  111.,  339. 
Society  v.  Coite,  325. 
Society  v.  New  Haven,  314. 
Society  v.  Wheeler,  115,  229. 
Sommers  v.  Johnson,  217. 
Sommerville  v.  Marks,  38. 
Soule  v.  Chase,  159,  161. 
South  Carolina  v.  Georgia,  36. 
Southern   Express  Co.  v.  Hood,  45, 

236. 

Southern  Express  Co.  v.  Mayor,  46. 
South  Western  Railroad  Co.  v.  Paulk, 

184. 


TABLE    OF    CASES. 


XXIX 


Southworth  v.  City,  149. 

Soutter  v.  Madison,  221. 

Sparks  v.  Clapper,  148. 

Sparrow  v.  Evansville  &  Crawfords- 

ville  Railroad  Co.,  123,  200. 
Spaulding  v.  Andover,  208. 
Spear  v.  Peabody,  156,  160. 
Speer  v.  Comm.,  48. 
Speer  v.  Directors,  90. 
Spencer  v.  Board?  375. 
Spinney,  Ex  parte,  295,  374,  376. 
Spooner  v.  McConnell,  127,  329. 
Sporer  v.  Eifler,  23. 
Sprague  v.   111.    Railroad   Co.,    196, 

199.  200. 

Springer  v.  Foster,  158. 
Sprott  v.  Reid,  213. 
•Sprott  v.  U.  S.,  332. 
Staats  v.  Hudson  River  Railroad  Co., 

192. 

Stacy  v.  Abbott,  262. 
Stafford  v.  Lick,  141. 
Stanley  v.  Stanley,  169. 
Stanmire  v.  Taylor,  128. 
Stanwood  v.  Green,  344. 
Starkweather  v.  Hawes,  223. 
Starr  v.  Hamilton,  143. 
Starr  v.  Pease,  143. 
Starr  v.  Robinson,  222. 
State  v.  Accommodation  Bank,  200. 
State  v.  Adams,  167,  207. 
State  v.  Antonio,  81. 
State  v.  Arlin,  117. 
State  v.  Atkins,  277. 
State  v.  Auditor,  109,  132,  173. 
State  v.  Bank,    132,    172,    176,    218, 

226. 

State  v.  Barker,  134,  135. 
State  y.  Barnett,  342. 
State  v.  Barringer,  210. 
State  v.  Batchelder,  302. 
State  v.  Beackins,  112. 
State  v.  Bell,  119. 
State  v.  Bentley,  177. 
State  v.  Bermudez,  229. 
State  v.  Berry,  132,  172. 
State  v.  Betts,  173. 
State  v.  Blundell,  176. 
State  v.  Bond,  115,  118. 
State  v.  Bosworth,  171. 
State  v.  Branin,  177. 
State  v.  Brown.  81,  82. 
State  v.  Browning,  47. 
State  v.  Buchanan,  274. 
State  v.  Buzzard,  343. 
State  v.  Calvin,   no. 


State  v.  Cardozo,  m. 

State  v.  Carew,  227. 

State  v.  Chandler,  343. 

State  v.  Charleston,  46,  106,  107,  232,, 

233,  239,  240. 
State  v.  Claiborne,  290. 
State  v.  Collector,  176,  326. 
State  v.  Commercial  Bank,  132,  173. 
State  v.   Commissioners,    173,    176, 

1 88,  189,  190. 

State  v.  Constitution,  37,  49. 
State  v.  Cooper,  50,  291. 
State  v.  County  Court,  132,  172. 
State  v.  County  Treasurer,  174. 
State  v.  Cumb.   &   Penn.   Railroad 

CO.,   43,   44.  t^^a 

State  v.  De  La  Foret,  276. 

State  v.  Del.,  L.  &  W.  Railroad  Co., 

27,  40,  44,  179,  235. 
State  v.  Demarest,  89. 
State  v.  Dews,  133,  143. 
State  v.  Dimish,  335. 
State  v.  Donehey,  235. 
State  v.  Doyle,  264. 
State  v.  Dulle,  172. 
State  v.  Fellows,  145. 
State  v.  Flavell,  176 
State  v.  Foreman,  60,  61,  63. 
State  v.  Fosdick,  48. 
State   Freight  Tax,  27,   28,  37,  43, 

44- 

State  v.  Fry,  143. 

State  v.  Garesche,  113,  119,  145, 
I  State  v.  Gatzweiller,  113,  151. 

State  v.  Garton,  24. 
|  State  v.  Gazlay,  145. 

State  v.  Georgia  Railroad  &  B.  Co , 

172,  176. 
;  State  v.  Gibson,  375. 

State  v.  Glen,  139. 
;  State  v.  Gray,  133. 
;  State  v.  Gulich,  335. 
i  State  v.  Haight,  176,  324,  325,  326. 

State  v.  Han.  &  St.  Jo.  Railroad  Co., 
174.  178. 

State  v.  Hancock,  176. 

State  v.  Hart,  325,  326. 

State  v.  Hawthorn,  144. 

State  v.  Heighland,  113.  119. 

State  v.  Hey  ward,  165,  168. 

State  v.  Hoge,  109. 

State  v.  Holmes,  144. 

State  v.  Hoppess,  298. 

State  v.  Hudson,  54,  55,  139. 

State  v.  Hunt,  329. 

State  v.  Jackson,  90,  346. 


XXX 


TABLE    OF    CASES. 


State  r.  Johnson,  118. 

State  v.  Jones,  133,  153,  229. 

State  v.  Jumel,  343. 

State  v.  Keeran,  119. 

State  v.  Keith,  118. 

State  v.  Kennedy,  47. 

State  v.  Kent,  117. 

State  v.  Keyes,  346,  358. 

State  v.  Kline,  115,  207. 

State  v.  Lathrop,  291. 

State  v.  Leester,  179. 

State  v.  Love,  173. 

State  v.  Manning,  116. 

State  v.  Mansfield,  176. 

State  v.  Matthews,  167,  170,  181. 

State  v.  Mayor,  192. 

State  v.  McBride,  262,  273. 

State  v.  McCann,  374.  378. 

State  v.  McDonald,  117. 

State  v.  McGinty,  228. 

State  v.  Medbury,  288,  289,  294. 

State  v.  Millain,  342. 

State  v.  Miller,  192. 

State  v.  Minton,  172, 

State  v.  Moor,  348. 

State  v.  Moore,  235,  319. 

State  v.  Navigation  Co.,  303. 

State  v.  Neal,  114,  119. 

State  v.  Newark,  176,  177. 
State  v.  New  Haven  &  N.  Railroad 
Co.,  150,  189. 

State  v.  Newsom,  343. 

State  v.  North,  47,  232,  233,  234. 

State  v.  Northern  Central  Railroac 
Co.,  177,  189. 

State  v.  N.  &  W.  Railroad  Co.,  175 

State  v.  Noyes,  171,  182. 

State  v.  Pagan,  49. 

State  v.  Parker,  173. 

State  v.  Paul,  119, 125,  126,  342. 

State  v.  Peckham,  233,  235. 

State  v.  Perry  Co.,  153,  338. 

State  v.  Person,  188. 

State  v.  Petway,  173,  177. 

State  v.  Phalen,  144. 

State  v.   Pinckney,  34,  47,  233,  234 
236. 

State  v.  Plime,  335. 

State  v.  Powers,  176,  177. 

State  v.  P.  W.  &  B.  Railroad  Co.,  43 

State  v.  Railroad  Co.,  168,  205,  207 

State  v.  Randall,  82,  272,  274. 

State  v.  Robinson,  47. 

State  v.  Ross,  62. 

State  v.  Ryan,  116. 

State  v.  Salomons,  117. 


tate  v.  Schumpert,  346. 
tate  v.  Sears,  116,  330. 
tate  v.  Shapleigh,  46,  232. 

tate  v.  Shricker,  342. 

tate  v.  Sluby,  232. 
tate  v.  Smedes,  144. 
itate  v  Smith,  343. 
Jtate  v.  Sneed,  118. 
>tate  v.  Southern   Pacific  Railroad 
Co.,  181,  185." 

tate  v.  Springfield,  208. 

tate  v.  Squires,  1 1 5. 

tate  v.  Stanton,  276. 

tate  v.  Sterling,  144. 
state  v.  Stone,  193. 
State  v.  Sullivan,  116. 
State  v.  Ta-cha-na-tah,  63. 

tate  v.  Tassels,  63. 

tate  v.  Tombecbee  Bank,  168,  169. 
State  v.  Trustees,  277. 
State  v.  Tutt,  274. 
State  v.  Waples,  145. 
State  v.  Wells,  273. 
State  v.  Wheeler,  235. 
State  v.  Wheeling  Bridge  Co..  51,  52, 

106,  107,  127,  242,  275,  351. 
State  v.  Whittemore,  68. 
State  v.  Wilson,  128,  145. 
State  v.  Winona  &  St.  Paul  Railroad 

Co.,  179. 
State  v.  Woodruff,  176. 
State  v.  Woodson,  119. 
State  v.  Wright,  81. 
State  v.  Yard,  189. 
State  Bank  v.  Charleston,  175. 
State  Bank  v.  Knoop,   132,  163,  164, 

165,  172,  173,  174.  364- 
State  Bank  v.  Madison,  208. 
State  Bank  v.  People,  132,  172. 
State  Bank  v.  Wilborn,  70. 
State  Home  Society  v.  Mayor,  178. 
State  Tax  on  Foreign  Held  Bonds, 
146. 

State  Tax   on   Railway   Gross   Re- 
ceipts, 45,  46,  233. 

State  Tonnage  Tax  Cases,  237,  240. 

Steamboat  Co.  v.  Livingston,  i,  19, 
26,  27,  32,  37,  56,  57. 

Steamship  Co.  v.  Joliffe,  42. 

Steamship  Co.  v.  Port  Wardens,  48, 
237,  239. 

Stearns  v.  Gittings,  229. 

Stearns  v.  U.  S.,  262,  273,  312. 

Steerman  v.  State,  56. 

Steele  v.  Thacher,  270. 

Steelman  v.  Mattix,  75,  76. 


•  TABLE    OF    CASES. 


XXXI 


Steen  v.  Finley,  152. 

Stephen  v.  Smith,  188. 

Stephens,  Alexander,  Ex  parte,  68. 

Stephens  v.  Powell,  188. 

Stephens  v.   St.  Louis  Nat'l  Bank, 

229. 

Stephenson  v.  Osborne,  225. 
Stepp  v.  Stahl,  77. 
Sterrett  v.  Houston,  238. 
Stetler's  Case,  253. 
Stetson  v.  Bangor,  326. 
Stevens  v.  Andrews,  227. 
Stevens  v.  Brown,  38. 
Stevens  v.  Norris,  161. 
Stevens  v.  R.  &  B.  R.  Co.,  196. 
Stewart  v.  Elaine,  n. 
Stewart  v.  Harry,  37. 
Stewart  v.  Kahn,  88. 
St.   Louis  B.    &   S.    Association  v. 

Lightner,  325. 
St.  Louis  v.  Ferry  Co  ,  46. 
St.  Louis  I.  M.  £  S.  R.  Co.  v.  Loftin, 

174.  177- 

St.  Luke's  Hospital  v.  Barclay,  277. 
Stocking  v.  Hunt,  222. 
Stockwell  v.  Silloway,  76. 
Stoddard  v.  Harrington,  156,  161. 
Stoddart  v.  Smith,  115,  215,  338. 
Stokes  v.  New  York,  39,  57. 
Stokes  v.  Rodman,  115.  148,  210. 
Stokes  v.  Searight,  127. 
Stone  v.  Bassett,  223,  224. 
Stone  v.  Bennett.  229. 
Stone  v.  Tibbetts,  157. 
Story  v.  Furman,  220. 
Story  v.  Jersey  City  Plank  Road  Co., 

202. 

Stow  v.  Parks,  79. 
St.    Paul    &    Pac.   Railroad  Co.   v. 

Parcher,  179. 
St.  Paul  £  Pac.  Railroad  Co.  v.  St. 

Paul,  177. 

Strader  v.  Graham,  299,  364. 
Streubel  v.  Mil.  £  M.  Railroad  Co., 

134- 

Strode  v.  Comm.,  325. 
Strong  v.  Daniel,  227,  230. 
Strong- v.  State,  337. 
Strong  v.  Waterman,  63,  65,  306. 
Stuart  v.  Laird,  262. 
Sturges  v.  Crowninshield,  4,  69,  72, 

73,  120,  121,  127,  131,  155,317, 

363- 

Sturges  v.  Spofford,  30. 
Succession  of  John  M.  Nelson,  141. 


Succession  of  Woodward,  369. 
Sullivan  v.  Brewster,  216. 
Sullivan  v.  Hieskill,  76. 
Supervisors  v.  Miss.  &  W.  Railroad 

Co.  200. 
Susquehanna  Canal  Co.  v.  Comm., 

146. 
Susquehanna  Canal   Co.  v.  Wright, 

151. 

Sutherland  v.  DeLeon,  115. 
Suydam  v.  Moore,  183,  188. 
Suydam  v.  Receivers,  115,  186. 
Swan  v.  Williams,  352,  354,  356. 
Swann  v.  Buck,  136.  144. 
Swasey  v.  N.  C.  Railroad  Co.,  365, 
Swickard  v.  Bailey,  230. 
Swift  v.  Fletcher,  217,  218. 
Syracuse  Bank  v.  Davis,  188. 

Tabor  v.  Harwood,  1 58. 

Taggart  v.  McGinn,  222. 

Tarbles'  Case,  335. 

Tarleton  v.  Southern  Bank,  214. 

Tarpley  v.  Hamer.  218. 

Tarver  v.  Tankersley,  333. 

Tate  v.  Stooltzfoos,  '141. 

Tatum  v.  Wright,  291. 

Tax  Cases,  177. 

Taylor  v.  Barren,  285. 

Taylor  v.  Drew,  61. 

Taylor  v.  Flint,  213. 

Taylor  v.  Morton,  313,  314. 

Taylor  v.  Railroad  Co.,  353,  354. 

Taylor  v.  Stearns,  126.  151,  209. 

Taylor  v.  Thompson,  89. 

Taylor  v.  Turley,  333. 
j  Teal  v.  Felton,  272. 
I  Tebbetts  v.  Pickering,  1 58. 

Tel  ford  v.  Barney,  62. 
I  Terre  Haute  &  Alton  Railroad  Co. 
v.  Earp,  197,  198. 

Terrett  v.  Taylor,  128,  137,  138. 

Territory  v.  Coleman,  319. 

Territory  v.  Pyle,  144. 

Texas  v.  Hardenberg,  331. 

Texas  v.  White,   91,  250.  308,  309, 
327,  328,  329.  330,  331. 

Thames  Bank  v.  Lovell,  37,  43.  239. 

Thayer  v.  Hedges,  19,  20,  21,  25,  79, 
80,  87. 

Thayer  v.  Seavey,  127,  218. 

Theophilus  C.  Callicott,  In  re,  253. 

Thomas  F.  Goodhue,  In  re,  298. 

Thomas  Kaine,  Ex  parte,  101. 

Thomas  Swan,The,  54,  57. 


XXX11 


JABLE    OF    CASES. 


Thomas  v.  Taylor,  232,  330,  331,  339. 
Thompson  v.  Alger,  70. 
Thompson  v.  Bohannon,  333. 
Thompson  v.  Buckley,  228. 
Thompson  v.  The  Catherina,  269. 
Thompson  v.  Guion,  199. 
Thompson  v.  Holton,  145. 
Thompson  v.  Mankin,  330,  333. 
Thompson  v.    Pacific  Railroad  Co., 

97,  327. 

Thompson  v.  N.  Y.  £  Harlem  Rail- 
road Co.,  170. 

Thompson  v.  State,  333. 

Thomson  v.  Lee  County,  125. 

Thorington  v.  Smith,  232. 

Thornbury  v.  Harris,  333. 

Thorne  v.  San  Francisco,  223. 

Thornhill  et  al.  v.  Bank  of  Louisiana, 

74,  75- 

Thornton's  Case,  298,  318. 
Thornton  v.  Hooper,  123,  133. 
Thornton  v.  McGrath,  142. 
Thorp  v.  B.  &  O.  Railroad  Co.,  164, 

180,  181,  182,  183. 
Thurber  v.  Townsend,  142,  143. 
Tillotson  v.  Millard,  226. 
Tilton  v.  Swift,  142. 
Timms  v.  Grace,  333. 
Tobias  Watkins,  Ex  parte,  361. 
Tobin  v.  Trump,  77. 
Tobin  v.  Vicksburg,  237. 
Tod  v.  Fairfield,  264. 
Todd  v.  Neal,  224. 
Toledo  Bank  v.  Bond,  132,  172,  173. 
Tolen  v.  Tolen,  143. 
Tomlinson  v.  Branch  Bank,  132,  172, 

178. 

Tomlinson  v.  Jessup,  193. 
Totten  v.  U.  S.,  246. 
Towle  v.  Forney,  123. 
Towne  v.  Pace,  148. 
Towne  v.  Smith,  159. 
Townsend  v.  Griffin,  143. 
Townsend  v.  Townsend,   112,    130, 

131,  209,  210,  227. 
Township  v.  Talcott,  125. 
Tracy  v.  State,  47,  233. 
Trask  v.  Maguire,  179. 
Tredway  v.  S.  C.  &  St.  P.  R.  Co., 

378. 

Trigg  v.  Drew,  147. 
Trombley  v.  Humphrey,  356. 
Tropic  Wind,  The,  86,  247. 
Troy   £   Rutland    Railroad    Co.  v. 

Kerr,  190,  194,  196,  203. 
Trustees  v.  Aberdeen,  205. 


I  Trustees  v.  Bailey,  132,  136. 
!  Trustees  v.  Beers,  137. 
I  Trustees  v.  Bradbury,  165,  337. 
Trustees  of  Public  Schools,    In   re, 

209. 
Trustees  v.  Rider,  120,  124,  126, 127, 

128,  133. 

Trustees  v.  State,  165. 
Trustees  v.  Tatman,  205. 
Trustees  v.  Winston,  187,  206. 
Tuckahoe    Canal    Co.  v.  Railroadr 

1 66,  1 80. 

Tucker  v.  Ferguson,  175. 
Tucker  v.  Harris,  141. 
Tucker  v.  Potter,  23. 
Tuolumne  Redemption  Co.  v.  Seclg- 

wick,  218,  224. 
Turner  v.  Bank,  261. 
Turner    v.  Missionary   Union.    303, 

315. 

Turner  v.  State,  4,  117. 
i  Turner  v.  Watkins,  224. 
Turnpike  Co.  v.  Phillips,  199,  200. 
Turnpike  Co.  v.  Railroad  Co.,    166, 

171,  180. 

Turnpike  Co.  v.  State,  169,  170. 
Turpen  v.  Commissioners,  144. 
Twitchell  v.  Comm.,  342,  357. 
T.  W.  &  W.   Railroad  Co.  v.  City, 

182,  183. 

Tyler  v.  Defrees,  87. 
Tyson    v.  Va.  &  T.   Railroad    Co., 

203. 


Underwood  v.  Lilly,  142. 
Union  Bank  v.  Hill,  23,  24. 
Union  Bank  v.  State,  124,  163,  178. 
Union  Improvement  Co.  v.  Comm., 

192. 
|  Union  Locks  &  Canals  v.  Towne, 

195,   199,  200,  202. 

Union  Pacific  Railroad  Co.  v.  Lin- 
coln County,  327. 

Union  Passenger  Railway  Co.  v. 
Philadelphia,  178. 

Union  Railroad  Co.  v.  East  Tennes- 
see Railroad  Co.,  190,  241. 

Union  Tow  Boat  Co.  v.  Bordelon, 

45-. 

University  v.  Maultsby,  165. 
Upton  v.  Hubbard,  157. 
Urton  v.  Hunter,  157. 

U.  S.  v. ,  81. 

U.  S.  v.  Ames,  94. 
U.  S.  v.  Anthony,  375. 


TABLE    OF    CASES. 


XXX111 


U.  S.  v.  Arredondo,  313. 

U.  S.  v.  Avery,  257. 

U.  S.  v.  Bailey,  17,  27,  60,  61,  96. 

U.  S.  v.  Bainbridge,  89. 

U.  S.  v.  130  Barrels,  361. 

U.  S.  v.  Bedford  Bridge,  37,  52,  261, 

269,  320. 

U.  S.  v.  Bevans,  270,  271. 
U.  S.  v.  Block,  346. 
U.  S.  v.  Bright,  336,  360,  365. 
U.  S.  v.  Brooks,  301. 
U.  S.  v.  Burr,  3,  280,  281. 
U.  S.  v.  Cathcart,  330. 
U.  S.  v.  Cha-to-kah-na-he-sha,  60. 
U.  S.  v.  Cheneweth;  282. 
U.  S.  v.  Cisna,  59,  60,  61,  63. 
U.  S.  v.  Cole,  86. 
U.  S.  v.  Collins,  349. 
U.  S.  v.  Conner,  349. 
U.  S.  v.  Conway,  221. 
U.  S.  v.  Cook,  307. 
U.  S.  v.  Coolidge,  262. 
U.  S.  v.  Coombs,  270,  271. 
U.  S.  v.  Cooper,  12. 
U.  S.  v.  Cornell,  93,  94. 
U.  S.  v.  Crawford,  86. 
U.  S.  v.  Cruikshank,    99,    100,    329, 

342,  343.  357,  37i,    374,    375, 

376,  377-  378,  379,  380. 
U.  S.  v.  Davis,  94. 
U.  S.  v.  Dawson,  280,  357. 
U.  S.  v.  Dewitt,  57. 
U.  S.  v.  Distillery,  103,  344,  349,  359, 

360. 

U.  S.  v.  Drennen,  263. 
U.  S.  v.  Ebert,  347. 
U.  S.  v.  Eliason,  246. 
U.  S.  v.  Elm,  373. 

U.  S.  v.  Ferreira,  256,  260,  265,  313. 
U.  S.  v.  Fisher,  95,  97. 
U.  S.  v.  Fitzgerald,  300. 
U.  S.  v.  Foster,  307. 
U.  S.  v.  Fourteen  Packages,  360. 
U.  S.  v.  Fries,  281,  282. 
U.  S.  v.  Furlong,  86. 
U.  S.  v.  43  Gallons,  59,  60,  254. 
U.  S.  v.  Gilbert,  280,  349. 
U.  S.  v.  Given,  381. 
U.  S.  v.  Gould,  29. 
U.  S.  v.  Gratiot,  300,  301,  303. 
U.  S.  v.  Great  Falls  Manuf.  Co.,  139. 
U.  S.  v.  Greathouse,  280,  281,  282. 
U.  S.  v.  Greiner,  281,  282. 
U.  S.  v.  Hall,  103,  374. 
U.  S.  v.  Hamilton,  277. 
U.  S.  v.  Hanway,  282. 


U.  S.  v.  Harding,  349. 

U.  S.  v.  Haskell,  348. 

U.  S.  v.  Haun,  29. 

U.  S.  v.  Hodges,  281,  282. 

U.  S.  v.  Holliday,  59,  60,  61. 

U.  S.  v.  Home  Ins.  Co.,  232. 

U.  S.  v.  Hoxie,  280,  282. 

U.  S.  v.  Hudson,  262. 

U.  S.  v.  Hughes,  103. 

U.  S.  v.  Irma,  360. 

U.  S.  v.  James,  13. 

U.  S.  v.  Joe,  262. 

U.  S.  v.  Keehler,  331. 

U.  S.  v.  Keen,  349. 

U.  S.  v.  Klein,  253. 

U.  S.  v.  Lariviere,  62,  255. 

U.  S.  v.  Lathrop,  262,  272,  273. 

U.  S.  v.  La  Vengence,  360. 

U.  S.  v.  Louisville  Canal  Co.,  355. 

U.  S.  v.  Macomb,  349. 

U.  S.  v.  Marigold,  31,  81,  95,  99. 

U;  S.  v.  Maurice,  256,  258,  316,  363. 

U.  S.  v.  Maxon,  357. 

U.  S.  v.  Maxwell,  346. 

U.  S.  v.  Mil.  &  St.  P.  Railroad  Co., 

U.  S.  v.  Minn.  &  N.  W.  Railroad  Co., 

U.  S.  v.  Mitchell,  280,  282. 

U.  S.  v.  More,  92,  265,  277. 

U.  S.  v.  Morrison,  330. 

U.  S.  v.  Norris,  348. 

U.  S.  v.  Ortega,  276. 

U.  S.  v.  129  Packages,  261. 

U.  S.  v.  Parker,  349. 

U.  S.  v.  Percheman,  313. 

U.  S.  v.  Perez,  348. 

U.  S.  v.  Peters,  336,  365,  366. 

U.  S.  v.  Petersburg!!  Judges,  380. 

U.  S.  v.  Pryor,  282. 

U.  S.  v.  Ragsdale,  61,  65,  66. 

U.  S.  v.  Railroad  Bridge  Co.,  32,  51, 

52,  82,  94,  261,  300,  302,  303. 
U.  S.  v.  Railroad  Co.,  24. 
U.  S.  v.  Rathbone,  359,  361. 
U.  S.  v.  Ravara,  262,  277. 
U.  S.  v.  Reese,  380. 
U.  S.  v.  Rhodes,  67,  312,  370. 
U.  S.  v.  Riley,  22,  348. 
U.  S.  v.  Ritchie,  23. 
U.  S.  v.  Rogers,  60. 
U.  S.  v.  Russell,  353. 
U.  S.  v.  Sacramento,  357. 
U.  S.  v.  Shanks,  65. 
U.  S.  v.  Shawmux,  59. 
U.  S.  v.  Sheppard,  346. 


XX  XIV 


TABLE    OF    CASES. 


U.  S.  v.  Shoemaker,  349. 

U.  S.  v.  Singer,  22. 

U.  S.  v.  Smith,  86.  242. 

U.  S.  v.  Ta-wau-ga-ca,  261. 

U.  S.  v.  Taylor,  350. 

U.  S.  v.  The  Betsey,  360. 

U.  S.  v.  The  James  Morrison,  54. 

U.  S.  v.  The  Queen,  "360. 

U.  S.  v.  The  Seneca,  57. 

U.  S.  v.  The  William,  30,  54,  107. 

U.  S.  v.  Tierney,  93,  94. 

U.  S.  v.  Todd,  260. 

U.  S.  v.  Townmaker,  349. 

U.  S.  v.  Travers,  94. 

U.  S.  v.  Villato,  67. 

U.  S.  v.  Waller,  346. 

U.  S.  v.  Ward,  61,  63. 

U.  S.  v.  Watson,  348. 

U.  S.  v.  Webster,  246. 

U.  S.  v.  Williams,  14,  349. 

U.  S.  v.  Williamson,  298. 

U.  S.  v.  Wilson,  253,  336. 

U.  S.  v.  Wonson,  358. 

U.  S.  v.  Worrall,  99,  262. 

U.  S.  v.  Wright,  257. 

U.S.  v.  Yellow  Sun,  61. 

U.  S.  Express  Co.  v.  Haines,  23. 

Van  Allen  v.  The  Assessors,  325, 
326,  327. 

Vance  v.  Burtis,  331. 

Van  Hook  v.  Whitlock,  156. 

Vanhorne  v.  Dorrance,  120,  133, 150, 
-306. 

Van  Husan  v.  Kanouse,  25,  79,  80, 
112,  362. 

Vannini  v.  Paine,  86. 

Van  Nostrand  v.  Carr,  73,  74. 

Van  Raugh  v.  Van  Arsdaln,  158, 

Van  Rensselaer  v.  Ball,  221. 

Van  Rensselaer  v.  Hays,  222. 

Van  Rensselaer  v.  Snyder,  209,  222. 

Vanuxem  v.  Hazlehursts,  72,  156, 
158.  284. 

Van  Valkenburg  v.  Brown,  373,  375, 
381. 

Vanzandt  v.  Waddell,  215. 

Varick  v.  Briggs,  141. 

Vaux  v  Nesbit,  68. 

Veazie  v.  Moor,  26,  31,  32,  34,  56. 

Veazie  Bank  v.  Fenno,  21,  22,  24,  25, 
105. 

Vedder  v.  Alkenbrack,  225. 

Verges  v.  Giboney,  25. 

Vermont  C.  Railroad  Co.  v.  Burling- 
ton, 176. 


Vernon  v.  Henson,  228. 
Vinsant  v.  Knox,  333. 
Virginia  v.  West  Virginia,  241,  276. 
Visitors  v.  State,  167. 
Volunteer,  The,  270. 
Von  Baumbach  v.  Bade,  209,213,223. 
t Von  Glan  v.  Varenne,  1 57,  1 58. 
Vonhein  v.  Elkus,  76. 
Von  Hoffman  v.  Quincy,  122,209,212, 
221. 

Wade  v.  Richmond,  206. 
Wadsworth  v.  Buffalo  H.  Association, 

306,  307,  308. 

Wainwright  v.  Bridges,  369. 
Waite  v.  Dowley,  327. 
Walcott  v.  People,  45. 
Waldo  v.  Williams,  221,  223. 
Waldron  v.  Railroad  Co.,  183. 
Walker  v.  Dunham,  144. 
Walker  v.  Peele,  144. 
Walker  v.  Sauvinet,  358,  375. 
Walker  v.  Tipton,  150,  339. 
Walker  v.  Whithead,    122,  130,  212. 

216. 

Wall  v.  Williamson,  65,  66. 
Wallace  v.  State,  332. 
Walsh  v.  Farrand,  155. 
Walston  v.  Comm.,  115,  116. 
Walter  A.  Wood  Mowing  Machine 

Co.  v.  Caldwell,  85. 
Walter  v.  Bacon,  141,  142,  217. 
Walton  v.  Bryenth,  23. 
Ward  v.  Flood,  370,  378. 
Ward  v.  Maryland,  289,  292. 
Ward  v.  Morris,  287. 
Wardlaw  v.  Buzzard,  230. 
Ware  v.  Hyer,  270. 
Ware  v.  Hylton,  314. 
Waring  v.  Clarke,  270,  360. 
Waring  v.  Mayor,  236. 
Warner  v.  Uncle  Sam,  311. 
Warren   Manuf.    Co.  v.  ALtna.  Ins. 

Co.,  14,  284,  291,  292. 
Warren  v.  Mayor,  138. 
Warren  v.  Paul,  23. 
Wartman  v.  Philadelphia,  1 50. 
Washburn  v.  Franklin,  149. 
Washington  Bridge  Co.  v.  State,  163, 

1 68. 
Washington   University    v.    Rouse, 

I73>  175. 

Water  Commissioners,  In  re,  52. 
Watson  v.  Bourne,  158,  160. 
Watson  v.  Mercer,  123,  141. 
Wayman  v.  Southard,  100,  336. 


TABLE    OF    CASES. 


XXXV 


Weaver  v.  Fegley,  81,  317,  319. 

Weaver  v.  Lapsley,  225. 

Webb  v.  Moore,  215,  223. 

Weber  v.  Harbor  Commissioners,  58. 

Webster  v.  Reid,  62,  313,  339,  361. 

Webster  v.  Rose,  227. 

Webster  v.  Seymour,  94,  335. 

Weimer  v.  Bunbury,  344,  346. 

Weister  v.  Hade,  115. 

Welch  v.  Wadsworth,  148. 

Wells,  Wm.,  Ex  parte,  252. 

Welman's  Case,  14. 

Welton  v.  State,  27,  28,  37,  47. 

Wendell,  In  re,  155. 

Wendover  v.  Lexington,  144. 

West  v.  Creditors,  74. 

Western  Saving  Fund  v.  Philadel- 
phia, 122,  136,  137,  149,  211. 

Weston  v.  Charleston,  146,  322, 323. 

West  End  Co.  v.  Atlanta  Co.,  170. 

West  River  Bridge  Co.  v.  Dix,  129, 
1 80. 

West.  Union  Tel.  Co.  v.  Atlantic  & 
Pac.  Tel.  Co.  28,  37. 

West.  Union  Tel.  Co.  v.  Mayer,  49. 

West.  Union  Tel.  Co.  v.  Richmond, 
48. 

West.  Wis.  Railroad  Co.  v.  Super- 
visors, 193,  194. 

Wetherbee  v.  Johnson,  279,  358. 

Wethersfield  v.  Humphrey,  35. 

Whallon  v.  Bancroft,  361. 

Wharf  Case,  239. 

Wheat  v.  State,  211,  215. 

Wheaton  v.  Peters,  5,  83. 

Wheeler  v.  Me-shin-go-me-sia,  306. 

Wheelock  v.  Leonard,  156,  157. 

Whelan  v.  U.  S.,  360. 

Whitaker  v.  Haley,  81. 

White  v.  Cannon,  330,  333. 

White  v.  Comm.,  274. 

White  v.  Hart,   88,   125,   154,   309, 

330,  369- 

White  v.  McKee,  339. 

White  v.  Railroad  Co.,  188,  194. 

White  v.  Syr.  &  Utica  Railroad  Co., 
202,  203. 

White  v.  Wayne,  115,  120. 

White  v.  White,  142,  143. 

White  v.  Wilkins,  220. 

White  v.  Winn,  161. 

White  River  Turnpike  Co.  v.  Rail- 
road Co.,  1 80. 

White's  Bank  v.  Smith,  30. 

Whitney  v.  Madison,  324,  325. 

Whitney  v.  Whiting,  1 58, 1 59, 160, 161. 


Wiggins  v.  U.  S.,  354. 

Wilard  v.  Presbury,  92. 

Wilckins  v.  Willett,  1 1 . 

Wilcox  v.  Davis.  228. 

Wilcox  v.  Jackson,  303. 

Wilder  v.  Lumpkin,  224. 

Wiley  v.  Farmer,  292. 

Willard  v.  Longstreet,  231. 

Willard  v.  People,  288,  321. 

William  B.  Hobbs,  Ex  parte,  375. 

William  Blount,  259. 

William  Fetter,  In  re,  295,  298. 

William  H.  Hughes,  Ex  parte,  251, 

296. 

William  J.  Jordan,  Ex  parte,  335. 
William  Jarvis,  The,  40. 
William  Law,  Ex  parte,  103. 
William  L.  Tate,  In  re,  379. 
William  Murphy,  In  re,  103. 
William  Pool,  Ex  parte,  263,  274,335. 
William  Wells,  Ex  parte,  252,  253. 
Williams  v.  Guignard,  157. 
Williams  v.  Haines,  214. 
Williams  v.  Norris,  351. 
Williams  v.  Waldo,  213. 
Williams  v.  Wfckerman,  354. 
Williams  v.  Wilkes,  336. 
Williamson  v.  Suydam,  151. 
Willis  A.  Jordan,  In  re,  72. 
Wilmington  Railroad   Co.  v.   Reid, 

132,  172,  176,  177. 
Wilmington  &  Weldon  Railroad  Co. 

v.  King,  154. 
Wilson  v.  Bozeman,  333. 
Wilson  v.  Buckman,  90. 
Wilson  v.  Hardesty,  123,  149. 
Wilson  v.    K.    C.   St.  Jo.   &  C.  B. 

Railroad  Co.,  38, 
Wilson  v.  Kenna,  23. 
Wilson  v.  Marsh  Co.,  54. 
Wilson  v.  Mason,  242. 
Wilson  v.  Matthews,  155,  157. 
Wilson  v.  Robertson,  284. 
Wilson  v.  Sharks,  225. 
Wilson  v.  Wall,  268,  307. 
Winchester  v.  Corinna,  90. 
Winona  &  St.  Peter  Railroad  Co.  v. 

Blake,  172,  184. 
Winona  &  St.  Peter  Railroad  Co.  v. 

Waldron,  183. 

Winston  v.  McCormick,  230. 
Winter  v.  Jones,  130,  132,  138,  336. 
Winter  v.  Muscogee  Railroad  Co., 

199. 

Winterniz,  In  re,  77,  78. 
Wise  v.  Rogers,  133. 


XXXVI 


TABLE    OF    CASES. 


Withers  v.  Buckley,   34,  35,  38,  58, 

299.  342,  346. 

Witherspoon  v.  Duncan,  302. 
Witt  v.  Follett,  157. 
Witter  v.  M.  P.  &  R.  Railroad  Co., 

198,  199. 

Womack  v.  Dearman,  336. 
Wood  v.  Child,  229. 
Wood  v.  Fitzgerald,  380,  381. 
Wood  v.  Kennedy,  148. 
Wood  v.  New  York,  215. 
Wood  v.  Wood,  122,  131,  210. 
Woodbridge  v.  Allen,  1 58. 
Woodbridge  v.  Wright,  158,  162. 
Woodfin  v.  Hooper,  217. 
Woodfin  v.  Slader,  214. 
Woodfork  v.  Union  Bank,  196,  199. 
Woodhull  v.  Wagner,  1 58. 
Woodman  v.  Kilbourn  Manuf.  Co., 

54,  299. 

Woodruff  v.  Parham,  47,  233. 
Woodruff  v.  Scruggs,  148. 
Woodruff  v.  State,  120,  126,  128,152. 
Woodruff  v.  Tilly,  154. 
Woodruff  v.  Trapnall,  no,  112,  128, 

147. 

Woods  v.  Buie,  210,  213. 
Woodson  v.  Fleck,  332. 
Woodson  v.  Randolph,  23. 
Woodworth  v.  Rogers,  360. 
Woolen  v.  Banker,  85. 
Wooley  v.  Butler,  12. 


Worcester  v.  Georgia,  314,  315. 

Worcester  v.  State,  59,  61,  62,  63,65. 

Works  v.  Junction  Railroad,  52. 

Worsley  v.  Municipality,  48,  238. 

Worthington  v.  Jerome,  161, 

Worthington  v.  Sebastian,  151. 

Worthy  v.  Barrett,  379. 

Wray  v.  Reily,  158. 

Wright  v.  Deacon,  298. 

Wright  v.  Marsh,  62. 

Wright  v.  Overall,  333. 

Wright  v.  Sill,  173. 

Wright  v.  Stiltz,  325. 

Wylie,  In  re,  71. 

Wymanv.  Mitchell,  157,  161. 

Wynehamer  v.  People,  38. 

Wynne,  In  re,  14. 

Wynne  v.  Wright,  47,  232,  233,  234. 

Yarmouth  v.  Yarmouth,  165. 
Yeaton  v.  Bank,  190. 
Yeazel  v.  Alexander,  38. 
Yerger,  Ex  parte,  275. 
Young  v.  Beardsley,  1 54. 
Young  v.  Harrison,  163. 
Young  v.  McKenzie,  140,  350. 
Young  v.  Oregon,  136. 
Young  v.  State  Bank,  225. 
Youngs  v.  Hall,  135. 

Zabriskie  v.    Hackensack   &   N.  Y. 
Railroad  Co.,  202,  203. 


NOTES 

OF 

CONSTITUTIONAL  DECISIONS. 


THE 

CONSTITUTION  OF  THE  UNITED  STATES. 


WE,  the  People  of  the  United  States,  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure 
domestic  tranquility,  provide  for  the  common  defense, 
promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  States 
of  America. 

General  Principles 

The  Constitution  did  not  commence  to  operate  until  the  first  Wednes- 
day in  March,  A.  D.  1789.  Owings  v.  Speed,  5  Wheat.  420. 

The  Constitution  should  be  so  construed  as  best  to  promote  the  great 
objects  for  which  it  was  made.  This  end  will  be  best  accomplished  by 
avoiding  either  extreme  of  the  rules  of  construction,  and  keeping  steadily 
in  view  the  purposes  for  which  it  was  instituted.  Steamboat  Co.  V.  Liv- 
ingston, 3  Cow.  713;  S.  C.  i  Hopk.  150;  Hague  v.  Powers,  39  Barb.  427. 

The  Constitution,  like  every  other  grant,  is  to  have  a  reasonable  con- 
struction according  to  the  import  of  its  terms,  and  where  a  power  is  ex- 
pressly given  in  general  terms,  it  is  not  to  be  restrained  to  particular  cases, 
unless  that  construction  grows  out  of  the  context  expressly  or  by  necessary 
implication.  The  words  are  to  be  taken  in  their  natural  and  obvious  sense, 
and  not  in  a  sense  unreasonably  restricted  or  enlarged.  Martin  v.  Hunter, 
I  Wheat.  304. 

It  is  manifest  that  the  Constitution  has  proceeded  upon  a  theory  of  its 
own,  and  given  or  withheld  powers  according  to  the  judgment  of  the  Ameri- 
can people  by  whom  it  was  adopted.  The  courts  can  only  construe  its 
powers,  and  can  not  inquire  into  the  policy  or  principles  which  induced  the 
grant  of  them.  Martin  v.  Hunter,  I  Wheat.  304. 

The  Constitution  unavoidably  deals  in  general  language.  It  did  not 
suit  the  purposes  of  the  people  in  framing  this  great  charter  of  their  liber- 

1 


2  CONSTITUTION    OF    THE    UNITED    STATES. 

tieji  >tc  provide  for  minute  specifications  of  its  powers,  or  to  declare  the 
means  by  which  those  powers  should  be  carried  into  execution.  It  was 
foreseen  that  this  would  be  a  perilous  and  difficult,  if  not  an  impracticable 
1  'task. ,  .The  instrument  was  not  intended  to  provide  merely  for  the  exigen- 
cies of  a  few  years,  but  was  to  endure  through  a  long  lapse  of  ages,  the 
events  of  which  were  locked  up  in  the  inscrutable  purposes  of  Providence. 
It  could  not  be  foreseen  what  new  changes  and  modifications  of  power 
might  be  indispensable  to  effectuate  the  general  objects  of  the  charter,  and 
restrictions  and  specifications  which  at  present  might  seem  salutary  might 
in  the  end  prove  the  overthrow  .of  the  system  itself.  Hence  the  powers  are 
expressed  in  general  terms,  leaving  to  the  legislature  from  time  to  time  to 
adopt  its  own  means  to  effectuate  legitimate  objects,  and  to  mould  and 
model  the  exercise  of  its  powers  as  its  own  wisdom  and  the  public  inter- 
ests should  require.  Martin  v.  Hunter,  i  Wheat.  304. 

*  No  uniform  rule  of  interpretation  can  be  applied  to  the  Constitution, 
which  may  not  allow,  even  if  it  does  not  positively  demand,  many  modifi- 
cations in  its  actual  application  to  particular  clauses.  Perhaps  the  safest 
rule  of  interpretation  will  be  found  to  be  to  look  to  the  nature  and  objects 
of  the  particular  powers,  duties  and  rights  with  all  the  lights  and  aids  of 
contemporary  history,  and  to  give  to  the  words  of  each  just  such  operation 
and  force,  consistent  with  tjieir  legitimate  meaning,  as  may  fairly  secure  and 
attain  the  ends  proposed.  Prigg  v.  Comm.  16  Pet.  539. 

No  court  of  justice  can  be  authorized  so  to  construe  any  clause  of  the 
Constitution-  as  to  defeat  its  obvious  ends,  when  another  construction,  equally 
accordant  with  the  words  and  sense  thereof,  will  enforce  and  protect  them. 
Prigg  v.  Comm.  16  Pet.  539. 

The  Constitution  and  the  powers  confided  by  it  to  the  general  govern- 
ment to  be  exercised  for  the  benefit  of  all  the  States,  ought  not  to  be  nulli- 
fied or  evaded  by  astute  verbal  criticism  without  regard  to  the  grand  aim 
and  object  of  the  instrument  and  the  principles  on  which  it  is  based.  Pas- 
senger Cases,  7  How.  283 ;  s.  C.  45  Mass.  282. 

In  expounding  the  Constitution,  every  word  must  have  its  due  force  and 
appropriate  meaning ;  for  it  is  evident  from  the  whole  instrument  that  no 
word  was  unnecessarily  used  or  needlessly  added.  Every  word  appears  to 
have  been  weighed  with  the  utmost  deliberation,  and  its  force  and  effect  to 
have  been  fully  understood.  No  word  in  the  instrument  therefore  can  be 
rejected  as  superfluous  or  unmeaning.  Holmes  v.  Jennison,  14  Pet.  540. 

The  framers  of  the  Constitution  spoke  through  a  permanent  law  to  a 
great  nation  from  the  vocabulary  of  that  nation.  When  they  use  a  term 
defined  in  that  vocabulary  they  must  be  understood  accordingly.  Kunzler 
v.  Kohaus,  5  Hill,  317. 

The  same  words  have  not  necessarily  the  same  meaning  attached  to 
them  when  found  in  different  parts  of  the  same  instrument ;  their  meaning 


GENERAL    PRINCIPLES.  3 

is  controlled  by  the  context.  In  common  language  the  same  word  has 
various  meanings,  and  the  peculiar  sense  in  which  it  is  used  in  any  sen- 
tence is  to  be  determined  by  the  context.  Cherokee  Nation  v.  State,  5 
Pet.  i. 

Where  the  words  admit  of  different  intendments,  that  must  be  selected 
which  is  most  consonant  to  the  object  in  view.  Aldrich  v.  Kinney,  4  Conn. 

380. 

• 

Care  should  be  taken  to  reconcile  words  apparently  discordant,  and  in 
such  a  manner  as  to  give,  if  possible,  meaning  to  every  word.  Curtis  v. 
Gibbs,  2  N.  J.  399. 

Adherence  must  not  be  had  to  the  letter,  in.  opposition  to  the  reason 
and  spirit  of  the  enactment ;  and  hence  to  effectuate  the  object  intended  it 
is  even  proper  to  deviate  from  the  usual  sense  of  the  words.  Aldrich  v. 
Kinney,  4  Conn.  380. 

Every  interpretation  which  leads  to  an  absurdity  ought  to  be  avoided, 
and  that  is  properly  denominated  absurd  which  is  morally  impossible  or  so 
contrary  to  reason  that  it  can  not  be  attributed  to  a  man  in  his  right  senses. 
Aldrich  v.  Kinney,  4  Conn.  380. 

Where  the  object  of  an  instrument  admits  of  no  doubt,  the  expressions 
should  not  be  rejected  as  inadequate  or  incompetent.  If  they  will  bear  the 
sense  which  they  were  intended  to  convey  without  too  much  constraining 
their  meaning,  they  should  be  interpreted  accordingly.  Hitchcock  v. 
Aicken,  I  Caines,  460. 

So  far  as  the  meaning  of  any  terms  is  completely  ascertained,  those  by 
whom  they  are  employed  must  be  considered  as  employing  them  in  that 
ascertained  meaning,  unless  the  contrary  is  proved  by  the  context.  U.  S. 
z/.  Burr,  2  Burr's  Trial,  401. 

Affirmative  words  are  often  in  their  operation  negative  of  other  objects  ,/ 
than  those  affirmed.     Marbury  v.  Madison,  i  Cranch,  137. 

A  constitution  is  an  instrument  of  government  made  and  adopted  by 
the  people  for  practical  purposes  connected  with  the  commerce,  business 
and  wants  of  human  life.  For  this  reason,  every  word  should  be  expounded 
in  its  plain,  obvious  and  common  sense.  Metropolitan  Bank  v.  Van  Dyck, 
27  N.  Y.  400. 

The  various  provisions  of  the  Constitution  should  receive  such  a  con- 
struction as  will  most  effectually  subserve  the  great  purposes  of  its  forma- 
tion, and  best  promote  the  general  welfare'  of  the  grantors  of  the  powers 
contained  in  it.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

A  written  constitution,  framed  by  men  chosen  for  the  work  by  reason  of 
their  peculiar  fitness,  and  adopted  by  the  people  upon  mature  deliberation, 


4  CONSTITUTION    OF    THE    UNITED    STATES. 

implies  a  degree  of  carefulness  of  expression  proportioned  to  the  importance 
of  the  transaction,  and  the  words  employed  are  to  be  presumed  to  have 
been  used  with  the  greatest  possible  discrimination.  Metropolitan  Bank  z>. 
Van  Dyck,  27  N.  Y.  400. 

The  Federal  Constitution  is  not  to  be  construed  technically.  It  was 
meant  to  subserve  great  and  beneficial  ends,  and  any  narrow  and  technical 
construction  that  makes  it  defeat  those  ends  and  work  mischief  is  obviously 
a  perversion  of  its  real* meaning.  People  v.  Dawell,  25  Mich.  247. 

The  Constitution  must  receive  a  practical  construction.  Its  limitations 
and  its  implied  prohibitions  must  not  be  extended  so  far  as  to  destroy  the 
necessary  powers  of  the  States,  or  prevent  their  efficient  exercise.  Railroad 
Co.  v.  Peniston,  18  Wall.  5. 

The  Constitution  should  be  so  construed  as  to  give  effect  to  its  different 
/  clauses,  so  far  as  it  is  possible  to  reconcile  them,  and  not  let  their  seeming 
repugnancy  destroy  one  another.    Cohens  v.  Virginia,  6  Wheat.  264 ;  Mar- 
bury  V.  Madison,  I  Cranch,  137. 

Although  the  spirit  of  the  Constitution  is  to  be  respected  not  less  than 
its  letter,  yet  the  spirit  is  to  be  collected  chiefly  from  its  words.  It  would 
be  dangerous  in  the  extreme  to  infer  from  extrinsic  circumstances  that  a 
case  for  which  the  words  of  an  instrument  expressly  provide  shall  be  ex- 
empted from  its  operation.  Where  words  conflict  with  each  other;  where 
'  the  different  clauses  of  an  instrument  bear  upon  each  other,  and  would  be 
inconsistent  unless  the  natural  and  common  import  of  words  be  varied, 
construction  becomes  necessary,  and  a  departure  from  the  obvious  mean- 
ing of  words  justifiable.  But  if  in  any  case  the  plain  meaning  of  a  pro- 
vision, not  contradicted  by  any  other  provision  in  the  same  instrument,  is 
to  be  disregarded  because  the  court  believes  the  framers  of  that  instrument 
could  not  intend  what  they  say,  it  must  be  one  in  which  the  absurdity  and 
injustice  of  applying  the  provision  to  the  case  would  be  so  monstrous  that 
all  mankind  would  without  hesitation  unite  in  rejecting  the  application. 
Sturges  v.  Crowninshield,  4  Wheat.  122. 

Great  attention  is  properly  paid  to  the  argument  from  inconvenience. 
This  argument  can  not  prevail  over  plain  words  or  clear  reason.  But  on 
the  other  hand,  a  construction  which  must  necessarily  occasion  great  public 
and  private  mischief  must  never  be  preferred  to  a  construction  which  will 
occasion  neither,  or  neither  in  so  great  degree,  unless  the  terms  of  the  in- 
strument absolutely  require  such  preference.  Ex  parte  Caesar  Griffin, 
Chase,  364;  S.  C.  25  Tex.  Supp.  623. 

A  case  which  is  within  the  words  of  the  rule,  must  be  within  it  opera- 
tion likewise,  unless  there  be  something  in  the  literal  construction  so  ob- 
viously absurd  or  mischievous,  or  repugnant  to  the  general  spirit  of  the 
instrument  as  to  justify  those  who  expound  the  Constitution  in  making  it 
an  exception.  Dartmouth  College  v.  Woodward,  4  Wheat.  518. 


GENERAL    PRINCIPLES.  5 

The  exception  of  a  particular  thing  from  general  words,  proves  that  in 
the  opinion  of  the  lawgiver  the  thing  excepted  would  be  within  the  general 
clause  had  the  exception  not  been  made.  Brown  v.  State,  12  Wheat.  419.' 

Affirmative  words  are  often,  in  their  operation,  negative  of  other  ob- 
jects than  those  affirmed,  and  where  a  negative  or  exclusive  sense  must  be  / 
given  to  them,  or  they  have  no  operation  at  all,  they  must  receive  that  neg-      I/ 
ative  or  exclusive  sense.     But  where  they  have  full  operation  without  it, 
where  it  would  destroy  some  of  the  most  important  objects  for  which  the 
power  was  created,  affirmative  words  ought  not  to  be  construed  nega- 
tively.    Cohens  v.  Virginia,  6  Wheat.  264. 

A  transposition  of  words  or  sentences  can  never  be  admitted  in  those 
cases  where  consistent  meaning  can  be  given  to  the  whole  clause  as  its 
authors  thought  proper  to  arrange  it,  and  where  the  only  doubt  is  whether 
the  construction  which  the  transposition  countenances,  or  that  which  results 
from  the  reading  which  the  legislature  has  thought  proper  to  adopt,  is  most 
likely  to  fulfill  the  supposed  intention  of  the  legislature.  Ogden  v.  Saunders, 
12  Wheat.  213. 

The  derangement  of  words  and  even  sentences  of  a  law,  may  some- 
times be  tolerated,  in  order  to  arrive  at  the  apparent  meaning  of  the  legis- 
lators to  be  gathered  from  other  parts  or  from  the  entire  scope  of  the  law ; 
but  this  is  a  hazardous  rule  to  adopt  in  the  construction  of  an  instrument 
so  maturely  considered  as  the  Constitution  was  by  the  enlightened  states- 
men who  framed  it,  and  so  severely  criticised  by  its  opponents  in  the  dif- 
ferent State  conventions  which  finally  adopted  it.  Ogden  v.  Saunders,  12 
Wheat.  213. 

There  is  no  mode  by  which  the  meaning  affixed  to  any  word  or  sen- 
tence by  a  deliberative  body  can  be  so  well  ascertained  as  by  comparing  it 
with  the  words  and  sentences  with  which  it  stands  connected.  Wheaton 
V.  Peters,  8  Pet.  591. 

Where  a  construction  has  been  long  carried  into  practice,  though  un- 
sanctioned  by  judicial  authority,  it  is  worthy  of  great  consideration  because 
it  can  not  be  overturned  without  great  inconvenience.  Houston  v.  Moore, 
5  Wheat,  i ;  s.  C.  3  S.  &  R.  169 ;  Hicks  v.  Hotchkiss,  7  Johns.  Ch.  297  ; 
Adams  v.  Storey,  I  Paine,  79  ;  M'Culloch  v.  State,  4  Wheat.  316;  Martin 
v.  Hunter,  I  Wheat.  304;  Briscoe  v.  Bank,  11  Pet.  257;  S.  C.  7  J.  J. 
Marsh.  349;  Cooley  v.  Philadelphia,  12  How.  299",  Metropolitan  Bank  v. 
Van  Dyck,  27  N.  Y.  400. 

Where  the  commencement  of  the  practice  was  almost  coeval  with  the 
Constitution,  there  is  great  reason  to  suppose  that  it  was  in  conformity  to 
the  sentiments  of  those  by  whom  the  true  intent  of  the  Constitution  was 
best  known.  Houston  v.  Moore,  5  Wheat.  I ;  S.  C.  3  S.  &  R.  169;  Ogden 
2/.  Saunders,  12  Wheat.  213  ;  Martin  v.  Hunter.  I  Wheat.  304;.  Prigg  v. 
Comm.  16  Pet.  539;  Jack  v.  Martin,  12  Wend.  311  ;  S.  C.  14  Wend.  509. 


0  »      CONSTITUTION    OF    THE    UNITED    STATES. 

Great  weight  has  always  been  attached,  and  rightly  attached,  to  con- 
temporaneous exposition.  Cohens  v.  Virginia,  6  Wheat.  264. 

The  opinion  of  the  Federalist  has  always  been  considered  as  of  great 

authority.     It  is  a  complete  commentary  on  the  Constitution,  and  is  ap- 

j     pealed  to  by  all  parties  on  the  questions  to  which  that  instrument  has  given 

v       birth.     Its  intrinsic  merit  entitles  it  to  this  high  rank,  and  the  part  two  of 

its  authors  performed  in  framing  the  Constitution,  put  it  very  much  in  their 

power  to  explain  the  views  with  which  it  was  framed.     Cohens  v.  Virginia, 

6  Wheat.  264. 

The  views  of  particular  members  or  the  course  of  proceedings  in  the 
convention,  can  not  control  the  fair  meaning  and  general  scope  of  the  Con- 
stitution as  it  was  finally  framed  and  now  stands.  It  is  a  finished  docu- 
ment, complete  in  itself,  and  to  be  interpreted  in  the  light  of  history  and 
of  the  circumstances  of  the  period  in  which  it  was  framed.  Legal  Tender 
Cases,  12  Wall.  457. 

The  words  "  people  of  the  United  States "  and  citizens,  are  synony- 
mous terms,  and  mean  the  same  thing.  They  both  describe  the  political 
body  who  form  the  sovereignty,  hold  the  power  and  conduct  the  govern- 
ment through  their  representatives.  They  are  what  are  called  "  the  sov- 
ereign people,"  and  every  citizen  is  one  of  this  people,  and  a  constituent 
member  of  this  sovereignty.  Dred  Scott  v.  Sandford,  19  How.  393. 

By  metaphysical  refinement,  it  might  be  correctly  said  that  there  is  no 
such  thing  as  a  citizen  of  the  United  States.  But  constant  usage,  arising 
from  convenience,  and  perhaps  necessity,  and  dating  from  the  formation  of 
the  Union,  has  given  substantial  existence  to  the  idea  which  the  term  con- 
veys. A  citizen  of  any  one  of  the  States  of  Union,  is  held  to  be  and  called 
a  citizen  of  the  United  States,  although  technically  and  abstractly  there 
is  no  such  thing.  To  conceive  a  citizen  of  the  United  States  who  is  not  a 
citizen  of  some  one  of  the  States,  is  totally  foreign  to  the  idea,  and  incon- 
sistent with  the  proper  construction  and  common  understanding  of  the  ex- 
pression as  used  in  the  Constitution.  Ex  parte  Frank  Knowles,  5  Cal.  300. 

The  Constitution  is  a  law  for  rulers  and  people  equally,  in  war  and  in 
peace,  and  covers,  with  the  shield  of  its  protection,  all  classes  of  men  at  all 
times  and  under  all  circumstances.  No  doctrine  involving  more  pernicious 
consequences  was  ever  invented  by  the  wit  of  man,  than  that  any  of  its 
provisions  can  be  suspended  during  any  of  the  great  exigencies  of  govern- 
ment. Ex  parte  Milligan,  4  Wall.  2. 

In  construing  the  Constitution,  no  principle  not  declared  can  be  admis- 
sible which  would  defeat  the  legitimate  operations  of  a  supreme  govern- 
ment. It  is  of  the  very  essence  of  supremacy  to  remove  all  obstacles  to 
its  action  within  its  own  sphere,  and  so  to  modify  every  power  vested  in 
subordinate  governments  as  to  exempt  its  own  operations  from  their  in- 


CONGRESS.  7 

fluence.  This  effect  need  not  be  stated  in  terms.  It  is  so  involved  in  the 
declaration  of  supremacy,  so  necessarily  implied  in  it,  that  the  expression 
of  it  could  not  make  it  more  certain.  M'Culloch  v.  State,  4  Wheat.  316 

In  construing  clauses  in  the  Constitution  which  involve  conflicting 
powers  of  the  government  of  the  Union  and  the  governments  of  the  re- 
spective States,  it  is  proper  to  take  a  view  of  the  literal  meaning  of  the 
words  to  be  expounded,  of  their  connection  with  other  words,  and  of  the 
general  objects  to  be  accomplished  by  the  prohibitory  clause  or  by  the 
grant  of  power.  Brown  v.  State,  12  Wheat.  419. 

In  construing  the  Constitution,  courts  of  justice  should  breathe  a  spirit 
of  harmony  and  conciliation.  The  powers  of  the  States  and  of  the  United 
States  often  approach  each  other  so  nearly  that  the  line  of  division  is  almost 
invisible.  While  the  laws  of  both,  then,  may  be  executed  without  clashing, 
they  should  be  supported  unless  they  are  manifestly  in  violation  of  the 
Constitution.  Houston  v.  Moore,  5  Wheat.  I  ;  S.  C.  3  S.  &  R.  169; 
Charleston  v.  Rogers,  2  McC.  495. 


ARTICLE  I. 

i 

SECTION  I.  , 

i.  All  legislative  powers  herein  granted,  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives. 

SECTION  II. 

1.  The   House  of    Representatives  shall   be  com- 
posed of  members  chosen  every  second  year   by  the 
people  of  the  several  States ;  and  the  electors  in  each 
State  shall  have  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  State  legislature. 

2.  No  person  shall  be  a  representative  who  shall 
not  have   attained  the  age  of  twenty-five  years,  and 
been  seven  years  a  citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  (a)  shall  be  ap- 
portioned among  the    several   States   which    may   be 
included  within  this  union,  according  to  their  respective 
numbers,  which  shall  be  determined  by  adding  to  the 


8  CONSTITUTION    OF    THE    UNITED    STATES. 

whole  number  of  free  persons,  including  those  bound 
to  service  for  a  term  of  years,  and  excluding  Indians 
not  taxed,  three-fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three  years  after  the 
first  meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such 
manner  as  they  shall  by  law  direct.  The  number  of 
representatives  shall  not  exceed  one  for  every  thirty 
thousand,  but  each  State  shall  have  at  least  one  repre- 
sentative ;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose 
three  ;  Massachusetts,  eight ;  Rhode  Island  and  Provi- 
dence Plantations,  one  ;  Connecticut,  five  ;  New  York, 
six  ;  New  Jersey,  four ;  Pennsylvania,  eight ;  Dela- 
ware, one  ;  Maryland,  six  ;  Virginia,  ten  ;  North  Car- 
olina, five ;  South  Carolina,  five  ;  and  Georgia,  three. 

Taxes. 

(a)  The  object  of  this  regulation  is  to  furnish  a  standard  by  which 
taxes  are  to  be  apportioned,  not  to  exempt  from  their  operation  any  part 
of  the  country.  Had  the  intention  been  to  exempt  from  taxation  those  who 
were  not  represented  in  Congress,  that  intention  would  have  been  ex- 
pressed in  direct  terms.  The  power  having  been  expressly  granted,  the 
exception  would  have  been  expressly  made.  But  a  limitation  can  scarcely 
be  said  to  be  insinuated.  The  words  used  do  not  mean  that  direct  taxes 
shall  be  imposed  on  States  only  which  are  represented  or  shall  be  appor- 
tioned to  representatives,  but  that  direct  taxation,  in  its  application  to 
States,  shall  be  apportioned  to  numbers.  This  clause  was  obviously  not 
intended  to  create  any  exemption  from  taxation,  or  to  make  taxation  de- 
pendent on  representation,  but  to  furnish  a  standard  for  the  apportionment 
of  each  on  the  States.  Loughborough  v.  Blake,  5  Wheat.  317. 

If  a  direct  tax  be  laid  at  all,  it  must  be  laid  on  every  State  conformably 
to  the  rule  provided  in  the  Constitution.  Congress  has  clearly  no  power  to 
exempt  any  State  from  its  due  share  of  the  burden.  But  this  regulation  is 
expressly  confined  to  the  States,  and  creates  no  necessity  for  extending  the 
tax  to  the  District  of  Columbia  or  the  territories.  Loughborough  v,  Blake, 
5  Wheat.  317. 

4.  When  vacancies  happen  in  the  representation 
from  any  State,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies. 


THE    SENATE.  9 

5.  The  House  of  Representatives  shall  choose  their 
speaker  and  other  officers,  and  shall  have  the  sole 
power  of  impeachment. 

SECTION  III. 

1.  The  Senate  of  the  United  States  shall  be  com- 
posed of  two  senators  from  each  State,  chosen  by  the 
legislature   thereof,   for   six   years ;    and  each  senator 
shall  have  one  vote. 

2.  Immediately  after  they  shall   be   assembled  in 
consequence  of  the  first  election,  they  shall  be  divided, 
as  equally  as  may  be,  into  three  classes.     The  seats  of 
the  senators  of  the  first  class  shall  be  vacated  at  the 
expiration  of  the  second  year  ;  of  the  second  class,  at 
the  expiration  of  the  fourth  year  ;    and  of  the  third 
class,  at  the  expiration  of  the  sixth  year :  so  that  one- 
third  may  be  chosen  every  second  year ;  and  if  vacan- 
cies happen,  by  resignation  or  otherwise,  during  the 
recess  of  the  legislature  of  any  State,   the  executive 
thereof  may  make  temporary  appointments  until  the 
next  meeting  of  the  legislature,  which  shall  then  fill 
such  vacancies. 

3.  No    person  shall  be   a  senator  who    shall   not 
have  attained  to  the  age  of  thirty  years,  and  been  nine 
years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  State  for  which 
he  shall  be  chosen. 

4.  The  Vice  President  of  the  United  States  shall 
be  president  of  the  Senate,   but  shall   have  no    vote 
unless  they  be  equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and 
also   a  president  pro  tempore,  in  the  absence  of   the 
Vice  President,  or  when  he  shall  exercise  the  office  of 
President  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all 
impeachments.     When  sitting  for  that   purpose,  they 
shall  be  on  oath  or  affirmation.     When  the  President 
of  the   United   States  is  tried,  the  chief  justice  shall 
preside  ;  and  no  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present. 


10  CONSTITUTION    OF    THE    UNITED    STATES. 

7.  Judgment,  in  cases  of  impeachment,  shall  not 
extend  further  than  to  removal  from  office,  and  dis- 
qualification to  hold  and  enjoy  any  office  of  honor, 
trust,  or  profit  under  the  United  States  ;  but  the  party 
convicted  shall  nevertheless  be  liable  and  subject  to  in- 
dictment, trial,  judgment,  and  punishment,  according 
to  law. 

•SECTION   IV. 

1.  The  times,  places,  and  manner  of  holding  elec- 
tions for  senators  and   representatives,  shall   be   pre- 
scribed in  each  State  by  the  legislature  thereof;  but 
the  Congress  may,  at  any  time,  by  law,  make  or  alter 
such  regulations,  except  as  to  the  places  of  choosing 
senators. 

2.  The   Congress  shall  assemble    at  least  once  in 
every  year,   and   such   meeting  shall  be  on  the  first 
Monday  in  December,  unless  they  shall  by  law  appoint 
a  different  day. 

SECTION   V. 

1.  Each  house  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members ;  and  a 
majority  of  each  shall  constitute  a  quorum  to  do  busi- 
ness ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance 
of  absent  members,  in   such   manner  and  under  such 
penalties  as  each  house  may  provide. 

Whether  a  senator  has  been  regularly  elected  is  a  question  exclusively 
for  the  Senate  of  the  United  States.  Anon.  12  Fla.  686. 

2.  Each  house  may  determine  the  rules  of  its  pro- 
ceedings, punish  its  members  for  disorderly  behavior, 
and,   with    the    concurrence   of    two-thirds,    expel    a 
member. 

Contempts. 

The  exercise  of  the  powers  given  over  their  own  members  is  of  such  a 
delicate  nature,  that  a  constitutional  provision  became  necessary  to  assert 
or  communicate  it.  Constituted  as  that  body  is  of  the  delegates  of  confed- 
erated States,  some  such  provision  was  necessary  to  guard  against  their 


CONTEMPTS.  I  I 

mntual  jealousy,  since  every  proceeding  against  a  representative  would  in- 
directly affect  the  honor  and  interest  of  the  State  which  sent  him.  But  the 
express  grant  does  not  imply  that  the  Senate  or  House  of  Representatives 
can  not  punish  for  contempt.  Anderson  z/.  Dunn,  6  Wheat.  204  ;  Ex  parte 
John  Nugent,  I  Am.  L.  J.  107. 

The  House  of  Representatives  has  the  "power  to  punish  an  individual 
for  contempt  of  its  dignity  and  authority  and  a  breach  of  its  privileges. 
Anderson  v.  Dunn,  6  Wheat.  204. 

The  Senate  has  the  power  to  punish  contempts  of  its  authority.  Ex 
parte  John  Nugent,  I  Am.  L.  J.  107. 

The  power  to  punish  for  contempt  does  not  belong  to  any  other  than  a 
legislative  or  judicial  body.  Anderson  v.  Dunn,  6  Wheat.  204. 

The  Senate  has  the  same  power  to  punish  contempts  in  secret  as  in 
open  session.  Ex  parte  John  Nugent,  I  Am.  L.  J.  107. 

The  House  of  Representatives  has  the  power  to  subpoena  witnesses  to 
testify  before  it,  or  before  one  of  its  committees,  and  to  compel  their  at- 
tendance from  any  portion  of  the  territorial  limits  of  the  United  States. 
It  is  a  necessary  incident  to  the  sovereign  power  of  making  laws.  Wilckins 
v.  Willett,  4  Abb.  App.  596 ;  s.  C.  10  Abb.  Pr.  164. 

The  power  to  punish  for  disobedience  and  contempt  is  a  necessary  inci- 
dent to  the  power  to  require  and  compel  attendance.  Wilckins  v.  Willett,. 
4  Abb.  App.  596  ;  s.  C.  10  Abb.  Pr.  164;  Stewart  v.  Elaine,  I  McArthur, 
453- 

A  warrant  of  commitment  need  not  set  forth  the  particular  facts  which 
constitute  the  alleged  contempt.  Ex  parte  John  Nugent,  I  Am.  L.  J.  107. 

A  warrant  to  commit  for  contempt  may  be  served  anywhere  within  the 

boundaries  of  the  United  States.     Anderson  v.  Dunn,  6  Wheat.  204. 

t 

The  power  to  punish  for  contempt  only  extends  to  the  power  of  im- 
prisonment. It  may,  at  first  view,  and  from  the  history  of  the  practice  of 
legislative  bodies,  be  thought  to  extend  to  other  inflictions ;  but  every  other 
will  be  found  to  be  mere  commutation  for  confinement,  since  commitment 
alone  is  the  alternative  where  the  individual  proves  contumacious.  And 
even  to  the  duration  of  imprisonment  a  period  is  imposed  by  the  nature  of 
things,  since  the  existence  of  the  power  that  imprisons  is  indispensable  to 
its  continuance,  and  although  the  legislative  power  continues  perpetual,  the 
legislative  body  ceases  to  exist  on  the  moment  of  its  adjournment  or  peri- 
odical dissolution.  It  follows  that  imprisonment  must  terminate  with  that 
adjournment.  Anderson  v.  Dunn,  6  Wheat.  204. 

No  court,  on  a  writ  of  habeas  corpus,  can  inquire  into  the  question  of 
contempt,  and  discharge  the  prisoner,  for  the  legislative  body  is  the  only 


12  CONSTITUTION    OF    THE    UNITED    STATES. 

judge  of  its  own  privileges  and  contempts.     Ex  parte  John  Nugent,  I  Am. 
L.  J.  107. 

3.  Each  house  shall  keep  a  journal  of  its  proceed- 
ings, and  from  time  to  time  publish  the  same,  except- 
ing  such    parts   as   may   in    their    judgment   require 
secrecy ;   and  the  yeas  and  nays  of  the  members  of 
either  house,  on   any  question,  shall,  at  the  desire  of 
one-fifth  of  those  present,  be  entered  on  the  journal. 

The  journal  can  not  be  kept  secret  unless  the  proceedings  themselves 
are  kept  secret.  Hence  each  house  has  a  right  to  hold  secret  sessions 
whenever  in  its  judgment  the  proceedings  shall  require  secrecy.  Ex  parte 
John  Nugent,  I  Am.  L.  J.  107. 

4.  Neither  house,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the   other,  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that 
in  which  the  two  houses  shall  be  sitting. 

SECTION    VI. 

i.  The  senators  and  representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by 
law,  and  paid  out  of  the  treasury  of  the  United  States. 
They  shall,  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same ; 
and  for  any  speech  or  debate  in  either  house,  they 
shall  not  be  questioned  in  any  other  place. 

The  word  "arrest"  has  a  definite  meaning,  both  technical  and  com- 
mon, and  necessarily  implies  corporal  restraint,  and  does  not  apply  to  a 
summons  which  is  served  by  a  mere  notice  of  it  to  the  party.  Wooley  v. 
Butler,  i  B.  L.  T.  35. 

There  is  no  privilege  which  exempts  a  member  of  Congress  from  the 
service  or  the  obligation  of  a  subpoena  as  a  witness  in  a  criminal  case. 
U.  S.  v.  Cooper,  4  Dall.  341. 

A  member  of  Congress  can  not  have  a  continuance  of  a  pending  case 
as  a  matter  of  right,  because  he  is  in  attendance  on  Congress.  Nones  v. 
Edsall,  i  Wall.  Jr.  189;  contra,  Doty  v.  Strong,  i  Pinney,  84. 

A  member  of  Congress  is  privileged  from  arrest  both  on  judicial  and 


APPROVAL    AND    DISAPPROVAL    OF    BILLS.  13 

mesne  process,  and  from  the  service  of  a  summons  or  other  civil  process, 
while  in  attendance  on  his  public  duties.  Nones  v.  Edsall,  I  Wall.  Jr.  189; 
Coxe  v.  M'Clenachan,  3  Ball.  478. 

This  privilege  is  to  be  taken  strictly,  and  is  to  be  allowed  only  while 
the  party  is  attending  Congress,  or  is  actually  on  his  journey  going  to  or  re- 
turning from  the  seat  of  government.  Lewis  v.  Elmendorf,  2  Johns.  Cas. 
222. 

The  duration  of  the  privilege  does  not  extend  to  forty  days  or  more  be- 
fore and  after  each  session  of  Congress,  but  is  limited  to  a  convenient  and 
reasonable  time  in  addition  to  the  actual  session  of  Congress,  for  each 
member  to  go  to  and  return  from  such  session.  Hoppin  v,  Jenckes,  8  R.  I. 
453- 

This  provision  applies  to  a  delegate  from  a  territory  as  well  as  to  a 
member  from  a  State,  for  with  the  exception  of  the  power  to  vote,  he  is  a 
member  of  the  House  of  Representatives,  and  entitled  to  the  same  consti- 
tutional privileges.  Doty  z/.  Strong,  I  Pinney,  84. 

2.  No  senator  or  representative  shall,  during  the 
time  fojr  which  he  was  elected,  be  appointed  to  any 
civil  office  under  the  authority  of  the  United  States, 
which  shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased,  during  such  time  ; 
and  no  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  house  during  his 
continuance  in  office. 

SECTION   VII. 

1.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives ;  but  the  Senate  may  propose 
or  concur  with  amendments,  as  on  other  bills. 

A  bill  for  regulating  postal  rates  for  postal  service  is  not  a  bill  for  rais- 
ing revenue,  and  may  originate  in  the  Senate.  U.  S.  v.  James,  13  Blatch. 
207. 

2.  Every  bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become 
a  law,  be  presented  to  the  President  of  the  United 
States ;  if  he  approve,  he  shall  sign  it ;  but  if  not,  he 
shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  ob- 
jections at  large  on  their  journal,  and  proceed  to  recon- 


14  CONSTITUTION    OF    THE    UNITED    STATES. 

sider  it.  If,  after  such  reconsideration,  two-thirds  of 
that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent, 
together  with  the  objections,  to  the  other  house,  by 
which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two-thirds  of  that  house,  it  shall  become  a  law.  But 
in  all  such  cases,  the  votes  of  both  houses  shall  be  de- 
termined by  yeas  and  nays,  and  the  names  of  the  per- 
sons voting  for  and  against  the  bill  shall  be  entered  on 
the  journal  of  each  house  respectively.  If  any  bill 
shall  not  be  returned  by  the  president  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented 
to  him,  the  same  shall  be  a  law  in  like  manner  as  if  he 
had  signed  it,  unless  the  Congress  by  their  adjourn- 
ment prevent  its  return,  in  which  case  it  shall  not  be  a 
law. 

There  are  two  courses  of  action  by  the  President  in  reference  to  a  bill 
presented  to  him,  each  of  which  results  in  the  bill  becoming  a  law.  One 
of  them  is  by  signing  the  bill  within  ten  days,  and  the  other  is  by  keeping 
it  ten  days  and  refusing  to  sign  it.  Gardner  v.  Collector,  6  Wall.  499. 

The  only  duty  required  of  the  President,  in  regard  to  a  bill  which  he 
approves,  is  that  he  shall  sign  it ;  nothing  more.  The  simple  signing  his 
name  at  the  appropriate  place  is  the  one  act  which  the  Constitution  re- 
quires of  him  as  the  evidence  of  his  approval ;  and  upon  his  performance 
of  this  act,  the  bill  becomes  a  law.  Gardner  v.  Collector,  6  Wall.  499. 

When  the  President  approves  a  bill,  it  is  not  required  that  he  shall 
write  on  the  bill  the  word  "  approved ;"  nor  that  he  shall  date  it.  Gardner 
v.  Collector,  6  Wall.  499. 

When  no  time  is  fixed  for  the  commencement  of  a  statute,  it  takes  effect 
from  its  date.  Matthews  v.  Zane,  7  Wheat.  164 ;  Warren  Manuf.  Co.  v. 
Etna  Ins.  Co.  2  Paine,  501 ;  In  re  Ankrim,  3  McLean,  285. 

Where  the  question  is  as  to  the  effect  of  a  proceeding  instituted  on  the 
same  day  on  which  an  act  affecting  the  validity  of  such  proceeding  was 
passed,  the  precise  time  at  which  the  act  became  a  law  may  be  inquired 
into.  Fractions  of  a  day  or  of  an  hour  may  be  allowed,  whenever  it  will 
promote  substantial  justice.  In  re  Richardson,  2  Story,  571  ;  In  re  Wynne, 
4  B.  R.  23  ;  S.  C.  I  Chase,  227  ;  In  re  Ankrim,  3  McLean,  285 ;  contra,  In 
re  David  Howes,  21  Vt.  619;  Welman's  Case,  20  Vt.  653;  U.  S.  v.  Wil- 
liams, i  Paine,  261. 

Every  bill  which  is  approved  by  the  President  takes  effect  as  a  law  only 
by  such  approval  and  from  the  time  of  such  approval.  It  is  the  act  of  ap- 
proval which  makes  it  a  law,  and  until  that  act  is  done  it  is  not  a  law.  The 


POWER    OF    CONGRESS.  15 

approval  can  not  look  backwards,  and  by  relation  make  that  a  law  at  any 
antecedent  period  of  the  same  day  which  was  not  so  before  the  approval, 
for  the  general  rule  is  lex  prospicit,  non  respicit.  In  re  Richardson,  2 
Story,  571. 

In  cases  of  doubt,  the  time  should  be  construed  favorably  for  the  citizens. 
The  legislature  have  it  in  their  power  to  prescribe  the  very  moment  in  fu- 
turo  after  the  approval  when  the  law  shall  have  effect,  and  if  it  does  not 
choose  to  do  so,  a  court  of  justice  is  not  called  upon  to  supply  the  defect. 
In  re  Richardson,  2  Story,  571. 

A  general  statute  is  not  to  be  proved  as  an  issue  of  fact,  but  the  courts 
take  judicial  notice  of  it.  Whenever  a  question  arises  as  to  the  existence 
of  a  statute,  or  the  time  when  a  statute  took  effect,  or  the  precise  terms  of  a 
statute,  the  court  which  is  called  upon  to  decide  it  has  a  right  to  resort  to 
any  source  of  information  which  in  its  nature  is  capable  of  conveying  to 
the  judicial  mind  a  clear  and  satisfactory  answer  to  such  question,  always 
seeking  first  for  that  which  in  its  nature  is  most  appropriate,  unless  the 
positive  law  has  enacted  a  different  rule.  Gardner  v.  Collector,  6  Wall. 
499- 

When  the  president  retains  the  bill,  it  is  his  action  in  retaining  it  for  ten 
days  which  makes  it  a  law,  and  no  evidence  is  required  of  him  by  the  Con- 
stitution to  show  that  he  has  ever  received  or  considered  it.  Gardner  v. 
Collector,  6  Wall.  499. 

If  the  bill  on  its  return  is  approved  by  two-thirds  of  the  members  pres- 
ent in  each  house,  that  is  sufficient,  although  they  do  not  constitute  two- 
thirds  of  the  whole  house.  See  19  Law  Rep.  196. 

3.  Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Representa- 
tives may  be  necessary,  except  on  a  question  of  ad- 
journment, shall  be  presented  to  the  President  of  the 
United  States ;  and  before  the  same  shall  take  effect, 
shall  be  approved  by  him,  or  being  disapproved  by 
him,  shall  be  repassed  by  two-thirds  of  the  Senate  and 
House  of  Representatives,  according  to  the  rules  and 
limitations  prescribed  in  the  case  of  a  bill. 

SECTION   VIII. 

The  Congress  shall  have  power— 

i.  To  lay  and  collect  taxes,  (a)  duties,  imposts,  and 
excises  ;  to  pay  the  debts,  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States ;  but 


1 6  CONSTITUTION    OF    THE    UNITED    STATES. 

all   duties,    imposts,    and    excises,    shall    be    uniform 
throughout  the  United  States : 

2.  To  borrow  money  (b)  on  the  credit  of  the  United 
States : 

3.  To  regulate  commerce  (V)  with  foreign  nations, 
and  among  the  several  States,  and  with  the   Indian 
tribes  : 

4.  To  establish  a  uniform  rule  of  naturalization,  (d\ 
and  uniform  laws  on  the  subject  of  bankruptcies  (e) 
throughout  the  United  States  : 

5.  To  coin  money,  (/)  regulate  the  value  thereof, 
and  of  foreign  coin,  and  fix  the  standard  of  weights 
and  measures :  (g) 

6.  To  provide  for  the  punishment  of  counterfeit- 
ing^) the  securities  and  current  coin  of  the  United 
States : 

7.  To  establish  post  offices  and  post  roads :  (z) 

8.  To  promote  the  progress  of  science  and  useful 
arts,  by  securing  for  limited  times  to  authors  and  in- 
ventors the  exclusive  right  to  their  respective  writings 
and  discoveries :  (/) 

9.  To  constitute  tribunals  inferior  to  the  Supreme 
Court : 

10.  To  define  and  punish  piracies  (/£)  and  felonies 
committed  on  the  high  seas,  and  offenses  against  the 
law  of  nations  : 

11.  To  declare  war,(/)  grant  letters  of  marque  and 
reprisal,  and  make  rules  concerning  captures  on  land 
and  water : 

12.  To  raise  and  support  armies ;  (m)  but  no  appro- 
priation  of  money  to  that  use  shall  be  for  a  longer 
term  than  two  years  : 

13.  To  provide  and  maintain  a  navy  : 

14.  To  make  rules  for  the  government  and  regula- 
tion of  the  land  and  naval  forces :  (n) 

15.  To  provide  for  calling  forth  the  militia  (o)  to 
execute  the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions. 

i6/  To  provide  for  organizing,  arming,  and  disciplin- 
ing the  militia,  (/)  and  for  governing  such  part  of  them 


GENERAL    PRINCIPLES.  I  J 

as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States,  respectively,  the  ap- 
pointment of  the  officers,  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by 
Congress  : 

1 7.  To  exercisfe  exclusive  legislation  (^)  in  all  cases 
whatsoever,  over  such  district,  not  exceeding  ten  miles 
square,  as  may,  by  cession  of  particular  States,  and  the 
acceptance  of  Congress,  become  the  seat  of  the  govern- 
ment of  the  United  States  ;  and  to  exercise  like  author- 
ity (r)  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings  ;  and, 

1 8.  To  make  all  laws  which  shall  be  necessary  (V) 
and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

General  Principles 

The  Federal  Government  is  one  of  enumerated  powers.  M'Culloch  v. 
State,  4  Wheat.  316. 

The  Constitution  is  one  of  enumeration,  and  not  of  definition.  Gib- 
bons v.  Ogden,  9  Wheat,  i  ;  S.  C.  17  Johns.  488;  4  Johns.  Ch.  150; 
M'Culloch  v.  State,  4  Wheat.  316. 

The  Federal  Government  is  one  of  delegated  powers.  All  powers  not 
delegated  to  it,  or  inhibited  to  the  States,  are  reserved  to  the  States  or  to 
the  people.  Briscoe  v.  Bank,  n  Pet.  257;  S.  C.  7  J.  J.  Marsh.  349. 

The  sovereignty  of  Congress,  though  limited  to  specified  objects,  is 
plenary  as  to  those  objects.  Gibbons  v.  Ogden,  9  Wheat.  I  ;  S.  C.  17 
Johns.  488  ;  4  Johns.  Ch.  150. 

The  Federal  Government,  though  limited  in  its  powers,  is  supreme  in  its 
sphere.  M'Culloch  v.  State,  4  Wheat.  316. 

The  Federal  Government  can  only  exercise  the  powers  granted  to  it. 
M'Culloch  v.  State,  4  Wheat.  316  ;  U.  S.  v.  Bailey,  I  McLean,  234. 

A  Constitution  to  contain  an  accurate  detail  of  all  the  subdivisions  of 
which  its  great  powers  will  admit,  and  of  all  the  means  by  which  they  may 
be  carried  into  execution,  would  partake  of  the  prolixity  of  a  legal  code, 
2 


1 8  CONSTITUTION    OF    THE    UNITED    STATES. 

and  could  scarcely  be  embraced  by  the  human  mind.  It  would  probably 
never  be  understood  by  the  public.  Its  nature,  therefore,  requires  that 
only  its  great  outlines  should  be  marked,  its  important  objects  designated, 
and  the  minor  ingredients  which  compose  those  objects  be  deduced  from 
the  nature  of  those  objects  themselves.  M'Culloch  v.  State,  4  Wheat.  316. 

The  theory  of  the  Constitution  is  that  a  few  great  and  leading  subjects 
of  control  and  administration,  belonging  to  and  inherent  in  all  sovereign 
states,  and  which  are  of  interest  to  all  the  States,  are  singled  out  and 
placed  within  the  exclusive  jurisdiction  of  the  general  government.  This 
government,  unlike  the  confederation  of  States  which  acted  mainly  through 
the  State  governments,  is  constituted  with  its  legislative,  judicial  and  ex- 
ecutive departments  to  act  directly  upon  the  people,  without  the  intervention 
of  the  State  governments,  and  is  organized  in  such  manner  as  to  make, 
administer  and  execute  all  laws  necessary  or  incidental  to  the  full  and 
complete  exercise  of  the  sovereign  power  upon  the  subject  placed  within 
its  administration.  Ex  parte  Alexander  Stephens,  70  Mass.  559. 

The  grant  does  not  convey  power  which  might  be  beneficial  to  the 
grantor  if  retained  by  himself,  or  which  can  inure  solely  to  the  benefit  of 
the  grantee,  but  is  an  investment  of  power  for  the  general  advantage  in  the 
hands  of  agents  selected  for  that  purpose,  which  power  can  never  be  ex- 
ercised by  the  people  themselves,  but  must  be  placed  in  the  hands  of  agents 
or  lie  dormant.  There  is  no  rule  for  construing  the  extent  of  such  powers 
other  than  is  given  by  the  language  of  the  instrument  which  confers  them, 
taken  in  connection  with  the  purposes  for  which  they  are  conferred.  The 
powers  are  not  to  be  construed  strictly.  Gibbons  v.  Ogden,  9  Wheat,  i. 

In  a  general  sense,  the  Federal  Government  does  not  possess  an  omni- 
potence equal  to  that  of  the  Parliament  of  Great  Britain.  But  in  respect 
to  all  subjects  of  legislation,  which  are  either  expressly  or  impliedly  dele- 
gated to  it,  complete  sovereign  legislative  power  is  conferred  upon  Con- 
gress, and  that  body  possesses  an  omnipotence  in  these  things  equal  to 
that  possessed  by  the  British*  Parliament  or  any  other  supreme  legislative 
body.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

In  construing  the  Constitution  and  determining  the  extent  of  one  of  its 
important  grants'  of  power  to  legislate,  no  distinction  can  be  made  between 
the  nature  of  the  power  and  the  nature  of  the  subject  on  which  that  power 
.was  intended  practically  to  operate,  nor  can  the  grant  be  considered  more 
extensive  by  affirming  of  the  power  what  is  not  true  of  the  subject  in  ques- 
tion. Cooley  v.  Philadelphia,  12  How.  299. 

To  understand  the  nature  and  extent  of  the  powers  conferred  by  the 
Constitution,  whether  substantive  or  ancillary,  it  is  indispensable  to  keep 
in  view  the  objects  for  which  the  Constitution  was  adopted,  and  for  which 
its  powers  were  granted.  When  the  general  purpose  of  the  instrument  is 
ascertained,  its  language  is  to  be  construed,  so  far  as  possible,  as  subservi- 
ent to  that  purpose.  Shollenberger  v.  Brinton,  52  Penn.  9. 


POWERS.  19 

Whenever  a  particular  object  is  to  be  effected,  the  language  of  the 
Constitution  is  always  imperative,  and  can  not  be  disregarded  without  vio- 
lating the  first  principles  of  public  duty.  On  the  other  hand,  the  legisla- 
tive powers  are  given  in  language  which  implies  discretion,  as,  from  the 
nature  of  legislative  power,  such  a  discretion  must  ever  be  exercised. 
Martin  v.  Hunter,  I  Wheat.  304. 

The  powers  granted  to  Congress  must  be  construed  and  applied  with 
reference  to  the  purposes  for  which  the  Constitution  was  made.  It  is  not 
a  mere  abstraction  to  sharpen  men's  wits  upon,  but  a  practical  scheme  of 
government,  having  all  necessary  power  to  maintain  its  existence  and  au- 
thority during  peace  and  war,  rebellion  or  invasion.  McCall  z/.  McDow- 
ell, i  Deady,  233  ;  s.  C.  I  Abb.  C.  C.  212. 

The  existence  of  a  power  should  not  be  denied  because  it  may  be  un- 
wisely exercised,  nor  should  it  be  presumed  that  abuses  will  take  place. 
Kneedler  v.  Zane,  45  Penn.  238;  S.  C.  3  Grant,  465;  Metropolitan  Bank  v. 
Van  Dyck,  27  N.  Y.  400;  Anderson  v.  Dunn,  6  Wheat.  204. 

Questions  of  power  do  not  depend  upon  the  degree  to  which  it  may  be 
exercised.  If  it  may  be  exercised  at  all,  it  must  be  exercised  at  the  will 
of  those  in  whose  hands  it  is  placed.  Brown  v.  State,  12  Wheat.  419; 
Martin  v.  Hunter,  I  Wheat.  304  ;  Metropolitan  Bank  v.  Van  Dyck,  27  N. 
Y.  400. 

That  is  a  very  narrow  view  which  regards  any  of  its  specified  powers 
independent  of  its  relation  to  the  others,  or  to  them  all  aggregated.  Each 
must  be  considered  as  but  part  of  a  system,  a  constituent  of  a  whole.  No 
single  power  specified  is  the  ultimate  end  for  which  the  Constitution  was 
adopted.  It  may  be  an  intermediate  end,  but  it  is  itself  a  means  for  the 
accomplishment  of  a  single  and  higher  end.  Shollenberger  v.  Brinton,  52 
Penn.  9. 

When  Congress  have  the  power  to  do  the  same  act  by  virtue  of  distinct 
powers,  they  may  exercise  which  they  please,  and  when  they  profess  to  act 
under  one  power,  there  is  no  necessity  to  resort  to  any  other.  Steamboat 
Co.  v.  Livingston,  3  Cow.  713;  S.  C.  I  Hopk.  150;  Thayer  v.  Hedges,  23 
Ind.  141 ;  Shollenberger  v.  Brinton,  52  Penn.  9. 

The  exceptions  from  a  power  mark  its  extent,  for  it  would  be  absurd  as 
well  as  useless  to  except  from  a  granted  power  that  which  was  not 
granted— that  which  the  words v  of  the  grant  could  not  comprehend. 
Gibbons  v.  Ogden,  9  Wheat,  i ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  150. 

Some  powers  that  usually  belong  to  sovereignties  were  extinguished, 
but  they  were  not  extinguished  by  implication.  When  it  was  intended 
that  governmental  powers  universally  acknowledged  as  such  should  cease 
to  exist,  they  were  expressly  denied,  not  only  to  the  States,  but*  to  the 
Federal  Government.  Shollenberger  v.  Brinton,  52  Penn.  9. 


J 


2O  CONSTITUTION    OF    THE    UNITED    STATES. 

Where  a  substantive  power  is  granted  in  a  given  form,  and  to  an  ex- 
actly defined  extent,  or  is  thus  withheld,  the  grant  or  prohibition  can  not  be 
exercised  or  contravened  by  a  power  claimed  as  incident  to  some  other 
substantive  power.  Thayer  v.  Hedges,  22  Ind.  282. 

No  power,  in  itself  a  substantive  one,  can  be  exercised  or  contravened 
by  action  under  an  incidental  power.  Thayer  v.  Hedges,  22  Ind.  282. 

It  is  not  indispensable  to  the  existence  of  any  power  claimed  for  the 
Federal  Government,  that  it  can  be  found  specified  in  the  words  of  the 
Constitution,  or  clearly  and  directly  traceable  to  some  one  of  the  specified 
powers.  Its  existence  may  be  deduced  fairly  from  more  than  one  of  the 
substantive  powers  expressly  defined,  or  from  them  all  combined.  It  is 
allowable  to  group  together  any  number  of  them,  and  infer  from  them  all 
that  the  power  has  been  conferred.  Legal  Tender  Cases,  12  Wall.  457. 

The  powers  conferred  upon  Congress  must  be  regarded  as  related  to 
each  other  and  all  means  for  a  common  end.  Each  is  but  part  of  a  sys- 
tem, a  constituent  of  one  whole.  No  single  power  is  the  ultimate  end  for 
which  the  Constitution  was  adopted.  Legal  Tender  Cases,  12  Wall.  457. 

Power  over  a  particular  subject  may  be  exercised  as  auxiliary  to  an 
express  power,  though  there  is  another  express  power  relating  to  the  same 
subject,  less  comprehensive.  Legal  Tender  Cases,  12  Wall.  457. 

There  is  no  ground  for  any  such  distinction  as  express  and  implied 
powers.  The  terms  are  used  merely  for  convenience.  In  fact,  the  auxil- 
iary powers,  those  appropriate  to  the  execution  of  other  powers  singly  de- 
scribed, are  as  expressly  given  as  any  other  powers.  Legal  Tender  Cases, 
12  Wall.  457. 

When  investigating  the  nature  and  extent  of  the  powers  conferred  by 
the  Constitution,  it  is  indispensable  to  keep  in  view  the  objects  for  which 
those  powers  were  granted.  If  the  general  purpose  of  the  instrument  is 
ascertained,  the  language  of  its  provisions  must  be  construed  with  refer- 
ence to  that  purpose,  and  so  as  to  subserve  it.  Legal  Tender  Cases,  1 2 
Wall.  457. 

An  act  of  Congress  passed  for  the  direct  and  primary  purpose  of  an- 
nulling a  contract  or  impairing  its  obligation  would  be  void,  but  if  the 
primary  object  of  an  act  is  within  any  of  the  granted  powers  it  is  valid, 
although  it  may  incidentally  impair  the  obligation  of  contracts.  Hague  v. 
Powers,  39  Barb.  427;  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400; 
George  v.  Concord,  45  N.  H.  434 ;  Shollenberger  v.  Brinton,  32  Penn.  9 ; 
Evans  z/.  Eaton,  Pet.  C.  C.  323  ;  S.  C.  3  Wheat.  454;  Bloomer  -v.  Stolley, 
5  McLean,  158  ;  Legal  Tender  Cases,  12  Wall.  457. 

Although  Congress  can  not  enable  a  State  to  legislate,  it  may  adopt 
the  provisions  of  a  State  on  any  subject.  Gibbons  v.  Ogden,  9  Wheat.  I ; 
S.  C.  17  Johns.  488;  4  Johns.  Ch.  150. 


TAXES.  21 


Taxes. 

(a)  The  power  to  lay  and  collect  taxes  is  expressly  given  to  Congress, 
in  connection  with  a  recital  of  the  objects  to  which  the  taxes  when 
collected  may  be  legitimately  applied.  The  recital  is  not  a  positive  and 
distinct  grant  of  indefinite  power.  Comm.  v.  Morrison,  2  A.  K.  Marsh. 
75  ;  Passenger  Cases,  7  How.  283  ;  S.  C.  45  Mass.  282;  Griswold  v.  Hep- 
burn, 2  Duvall,  20  ;  Thayer  v.  Hedges,  22  Ind.  282 ;  vide  Maynard  v.  New- 
man, i  Nev.  271. 

The  grant  is  general  without  limitation  as  to  place.  It  consequently 
extends  to  all  places  over  which  the  government  extends.  If  this  could  be 
doubted,  the  doubt  is  removed  by  the  subsequent  words  which  modify  the 
grant.  These  words  are :  "  but  all  duties,  imposts  and  excises  shall  be 
uniform  throughout  the  United  States."  It  will  not  be  contended  that  the 
modification  of  the  power  extends  to  places  to  which  the  power  itself  does 
not  extend.  The  power  then  to  lay  and  collect  duties,  imports  and 
excises,  may  be  exercised  and  must  be  exercised  throughout  the  United 
States.  This  term  designates  the  great  Republic  which  is  composed  of 
States  and  Territories.  The  District  of  Columbia  is  not  less  within  the 
United  States  than  any  State.  Since  then  the  power  to  lay  and  collect 
taxes,  which  includes  direct  taxes,  is  obviously  coextensive  with  the  power 
to  lay  and  collect  duties,  imposts  and  excises,  it  follows  that  the  power  to 
impose  direct  taxes  also  extends  throughout  the  United  States.  Lough- 
borough  v.  Blake,  5  Wheat.  317. 

The  power  to  lay  and  collect  taxes,  duties  and  imposts,  gives  to  Con- 
gress a  plenary  power  over  all  persons  and  things  for  taxation,  except  ex- 
ports. Such  is  the  received  meaning  of  the  word  taxes  in  its  most 
extended  sense,  and  always  so  when  it  is  not  used  in  contradistinction  to 
terms  of  taxation  having  a  limited  meaning  as  to  the  objects  to  which  by 
usage  the  terms  apply.  It  is  in  the  Constitution  used  in  both  senses ;  in 
its  extended  sense,  when  it  is  said  that  Congress  may  lay  and  collect  taxes, 
and  in  a  more  confined  sense  in  contradistinction  to  duties,  imposts  and 
excises.  Congress  may  tax  persons  who  come  into  the  United  States.  Pas- 
senger Cases,  7  How.  283 ;  s.  C.  45  Mass.  282. 

The  purpose  of  the  Constitution  was  to  give  the  power  of  taxation  to 
Congress  in  its  fullest  extent  as  to  everything  except  exports.  This  pur- 
pose is  apparent  from  the  terms  in  which  the  taxing  power  is  granted. 
More  comprehensive  words  could  not  have  been  used.  Veazie  Bank  v. 
Fenno,  8  Wall.  533. 

The  taxing  power  is  given  in  the  most  comprehensive  terms.  The 
only  limitations  imposed  are,  that  direct  taxes,  including  the  capitation  tax, 
shall  be  apportioned ;  that  duties,  imposts  and  excises  shall  be  uniform ; 
and  that  no  duties  shall  be  imposed  upon  articles  exported  from  any  State. 


22  CONSTITUTION    OF    THE    UNITED    STATES. 

With  these  exceptions,  the  exercise  of  the  power  is  in  all  respects  unfet- 
tered.    Pacific  Life  Ins.  Co.  v.  Soule,  7  Wall.  433. 

Congress  can  not  tax  exports,  and  it  must  impose  direct  taxes  by  the 
rule  of  apportionment,  and  indirect  taxes  by  the  rule  of  uniformity.  Thus 
limited  and  thus  only,  it  reaches  every  subject,  and  may  be  exercised  at 
discretion.  But  it  reaches  only  existing  subjects.  License  Tax  Cases,  5 
Wall.  462. 

Congress  has  no  power  to  lay  taxes  to  pay  the  debts  of  a  State,  or  to 
provide  by  taxation  for  its  general  welfare.  Congress  may  tax  for  the 
treasury  of  the  Union,  and  here  its  power  ends.  Passenger  Cases,  7  How. 
283 ;  s.  C.  45  Mass.  282. 

A  tax  can  not  be  pronounced  unconstitutional,  merely  because  it  is  op- 
pressive, for  Congress  is  responsible,  not  to  the  court,  but  to  the  people  by 
whom  its  members  are  elected.  Veazie  Bank  v.  Fenno,  8  Wall.  533. 

Duties  are  things  due  and  recoverable  by  law.  In  its  widest  significa- 
tion the  term  is  hardly  less  comprehensive  than  "taxes."  It  is  applied  in 
its  most  restricted  meaning  to  customs,  and  in  that  sense  is  nearly  the 
synonym  of  "  imposts."  Pacific  Life  Ins.  Co.  v.  Soule,  7  Wall.  433. 

Excise  is  an  inland  imposition,  sometimes  upon  the  consumption  of  the 
commodity  and  sometimes  upon  the  retail  sale ;  sometimes  upon  the  man- 
ufacturer and  sometimes  upon  the  -vendor.  Pacific  Life  Insurance  Co.  v. 
Soule,  7  Wall.  433. 

Impost  is  a  duty  on  imported  goods  and  merchandise.  Pacific  Life  Ins. 
Co.  -v.  Soule,  7  Wall.  433. 

An  internal  revenue  law  which  is  uniform  is  valid,  although  its  enforce- 
ment is  suspended  by  rebellion  in  some  States,  and  it  recognizes  such  sus- 
pension. U.  S.  v.  Riley,  5  Blatch.  204. 

A  tax  upon  distillers  is  in  the  nature  of  an  excise  tax,  and  is  uniform  in 
its  operation  if  it  is  assessed  equally  upon  all  manufacturers  of  spirits, 
wherever  they  are.  U.  S.  v.  Singer,  15  Wall.  112. 

Congress  may  impose  a  tax  on  a  business  which  is  prohibited  by  the 
laws  of  a  State.  License  Tax  Cases,  5  Wall.  462 ;  U.  S.  v.  Riley,  5 
Blatch.  204. 

Congress  has  the  power  to  raise  revenue  by  a  stamp  act.  Hunter  v. 
Cobb,  i  Bush,  239. 

Congress  has  no  power  to  forfeit  land  absolutely  to  the  United  States 
as  a  penalty  for  the  non-payment  of  taxes.  Martin  v.  Snowden,  18  Gratt. 
100. 

Congress  has  no  power  to  provide  that  the  whole  land  shall  be  sold  for 
non-payment  of  direct  taxes  in  every  case,  whatever  may  be  the  value  of 


TAXES.  23 

the  land,  and  whatever  the  amount  of  the  tax,  for  such  a  course  is  not  nec- 
essary and  proper  to  carry  the  power  to  tax  into  execution.  Martin  v. 
Snowden,  18  Gratt.  100. 

Congress  can  not  authorize  a  trade  or  business  within  a  State  in  order 
to  tax  it.  License  Tax  Cases,  5  Wall.  462. 

The  Federal  Government  is  limited  in  its  right  to  lay  and  collect  taxes 
to  the  citizens  and  their  transactions  as  such,  or  as  acting  in  the  Federal 
Government  officially  or  otherwise,  and  cannot  lay  them  on  or  collect 
them  from  individuals  on  their  proceedings  when  acting,  not  as  citizens 
transacting  business  with  each  other  as  such,  but  officially  or  in  the  pur- 
suit of  rights  and  duties  in  and  through  State  official  agencies  and  institu- 
tions. Warren  v.  Paul,  22  Ind.  276. 

Congress  has  no  power  to  tax  the  means  and  instrumentalities  employed 
by  the  States  for  carrying  on  the  operations  of  their  governments,  preserv- 
ing their  existence  and  fulfilling  the  high  and  responsible  duties  assigned 
to  them  by  the  Constitution.  Collector  v.  Day,  n  Wall.  113. 

Congress  can  not  impose  a  tax  upon  the  salary  of  a  judicial  officer  of  a 
State.  Collectors.  Day,  11  Wall.  113. 

Congress  can  not  impose  an  income  tax  on  the  compensation  allo\ved 
by  a  State  to  a  State's  attorney.  U.  S.  v.  Ritchie,  4  C.  L.  N.  139. 

A  stamp  tax  on  writs  issued  by  State  courts,  is  unconstitutional  and 
void.  Warren  v.  Paul,  22  Ind.  276;  Jones  v.  Keep,  19  Wis.  369;  Fifield 
2/.  Close,  15  Mich.  505  ;  Smith  z/.  Short,  40  Ala.  385  ;  Union  Bank  v.  Hill, 
3  Cold.  325  ;  Edelward's  Appeal,  66  Penn.  89 ;  Tucker  v.  Potter,  35  Conn. 
43;  Lewis  v.  Randall,  I  Abb.  Pr.  N.  S.  135;  S.  C.  30  How.  Pr.  378;  Wal- 
ton v.  Bryenth,  24  How.  Pr.  357;  Ford  v.  Clinton,  25  Iowa,  157;  contra, 
German  Liederkranz  2/.  Schieman,  25  How.  Pr.  388  ;  Hoyt  v.  Benner,  22 
La.  Ann.  353. 

Congress  has  no  power  to  control  contracts  or  impair  the  legal  obliga- 
tion of  contracts  made  in  a  State  according  to  her  laws,  by  making  them 
void  for  want  of  a  stamp.  Hunter  v.  Cobb,  i  Bush,  239 ;  Latham  v. 
Smith,  45  111.  29  ;  Forcheimer  v.  Holly,  14  Fla.  239. 

Congress  has  no  power  to  declare  by  law  what  shall  or  shall  not  be  evi- 
dence in  a  State  court.  Latham  v.  Smith,  45  111.  29 ;  Forcheimer  v.  Holly, 
14  Fla.  239;  Clemens  v.  Conrad,  19  Mich.  170;  Sporer  v.  Eifler,  I  Heisk. 
633;  Haight  v.  Grist,  64  N.  C.  739;  Hunter  v.  Cobb,  I  Bush,  239;  Han- 
ford  v.  Obrecht,  49  111.  146  ;  Craig  v.  Dimock,  47  111.  308  ;  Bunker  v.  Green, 
48  111.  243 ;  U.  S.  Express  Co.  v.  Haines,  48  111.  248 ;  Wilson  V.  Kenna,  52 
HI.  43  ;  contra,  Woodson  v.  Randolph,  I  Va.  Cas.  128;  Howe  v.  Carpen- 
ter, 53  Barb.  382. 


24  CONSTITUTION    OF    THE    UNITED    STATES. 

Congress  can  not  tax  the  salary  of  a  judge  of  a  State  court,  although 
his  salary  is  fixed  by  a  body  acting  under  the  authority  of  the  Legislature, 
for  the  agency  which  the  State  may  choose  to  employ  for  that  purpose, 
can  not  affect  the  relation  which  the  two  governments  bear  to  each  other. 
Freedman  v.  Sigel,  10  Blatch.  327. 

Congress  has  no  power  to  tax  the  official  bonds  given  to  a  State  by  its 
officers,  for  the  faithful  performance  of  their  duties.  State  v.  Carton,  32 
Ind.  i ;  contra,  City  v.  Stevenson,  30  Iowa,  526. 

There  is  no  distinction  between  levying  a  tax  upon  the  exercise  of  a 
power  reserved  to  the  States,  and  levying  it  on  all  those  who  seek  to  en- 
force their  rights  or  redress  their  grievances  through  the  instrumentality  of 
the  power  or  upon  the  means  employed  to  that  end.  Union  Bank  v.  Hill, 
3  Cold.  325. 

Congress  can  not  impose  a  tax  upon  a  tax  certificate  issued  by  State 
authority  at  a  tax  sale.  Barden  v.  Supervisors,  33  Wis.  445. 

Congress  can  not  tax  the  salary  of  a  judge  of  a  State  court,  although 
it  is  paid  by  a  municipal  corporation,  for  the  right  to  tax  does  not  depend 
upon  the  mode  which  the  State  may  choose  to  raise  the  revenue  applied  to 
the  support  of  the  office,  or  the  sources  from  which  it  may  choose  to  draw 
that  revenue.  Freedman  v.  Sigel,  10  Blatch.  327. 

Congress  can  not  require  a  revenue  stamp  to  be  placed  upon  a  tax  deed 
given  by  a  State  upon  a  sale  of  land  for  taxes,  for  it  has  no  power  to  tax 
the  means  or  instruments  devised  by  the  States  for  the  purpose  of  collect- 
ing their  own  revenues.  Sayles  v.  Davis,  22  Wis.  225  ;  Delorme  v.  Ferk, 
24  Wis.  201. 

A  municipal  corporation  is  a  portion  of  the  governmental  power  of  the 
State,  and  its  revenues  are  not  subject  to  taxation.  U.  S.  v.  Railroad  Co. 
17  Wall.  322. 

Congress  can  not  tax  the  interest  due  to  a  municipal  corporation,  on 
money  advanced  by  it  to  a  railroad  corporation,  to  aid  in  building  a  railroad. 
U.  S.  v.  Railroad  Co.  17  Wall.  322. 

'  In  order  to  entitle  the  revenue  of  a  municipal  corporation  to  exemption 
from  taxation,  it  must  be  municipal  in  its  nature.  U.  S.  v.  Railroad  Co. 
17  Wall.  322. 

Congress  may  impose  a  tax  upon  the  notes  of  State  banks  issued  for  V 
circulation.     Veazie  Bank  v.  Fenno,  8  Wall.  533. 

A  tax  upon  the  interest  due  on  railroad  bonds,  which  is  levied  upon  all 
railroads  indebted  by  bond,  and  in  the  same  amount,  and  is  to  be  collected 
in  the  same  manner,  is  valid  although  the  bonds  are  held  by  non-residents. 
The  tax  must  be  uniform  throughout  the  United  States,  not  beyond  them. 
Michigan  Central  R.  R.  Co.  v.  Slack,  22  I.  R.  R.  337. 


BORROWING    MONEY.  25 

Borrowing  Money. 

(ff)  The  power  to  "borrow  money,"  includes  or  implies  the  power  to 
issue  the  requisite  securities  or  evidences  of  debt  for  the  money  borrowed. 
Hague  v.  Powers,  39  Barb.  427  ;  Metropolitan  Bank  ?/.  Van  Dyck,  27  N. 
Y.  400 ;  Thayer  v.  Hedges,  22  Ind.  282  ;  George  v.  Concord,  45  N.  H, 
434;  Van  Husan  v.  Kanouse,  13  Mich.  303. 

It  is  not  necessary  that  these  obligations  shall  be  issued  only  in  return 
for  money  received,  and  not  for  capital  or  commodities  of  which  money  is 
the  representative.  As  the  government  requires  articles  of  various  descrip- 
tions, or  the  services  of  men  for  its  exigencies  in  war  and  in  peace,  it  may 
give  its  own  obligations  or  evidences  of  indebtedness,  and  these  are  valid 
and  properly  issued  under  the  power  to  borrow  money.  Metropolitan 
Bank  v.  Van  Dyck,  27  N.  Y.  400. 

It  is  not  essential  to  the  exercise  of  this  power  that  the  contract  between 
the  government  and  the  lender  or  the  obligations  issued  shall  provide  for 
the  repayment  of  the  money  borrowed  at  any  specific  future  day,  or  with 
interest.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

The  issue  of  treasury  notes  is  an  exchange  of  credit  for  money  or  prop- 
erty. All  political  economists  recognize  the  fact  that  in  issuing  paper 
promises  to  circulate  as  currency,  their  makers  are  in  effect  borrowing  on 
the  credit  of  these  promises  whatever  of  value  they  receive  in  exchange 
for  them.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

Borrowing  money  means  neither  more  nor  less  than  raising  supplies  on 
the  credit  of  the  government.  The  issuing  and  paying  out  of  treasury 
notes  may  be  a  forced  loan  to  the  government.  Metropolitan  Bank  v. 
Van  Dyck,  27  N,  Y.  400. 

Congress  may  constitutionally  authorize  the  emission  of  bills  of  credit, 
make  them  receivable  in  payment  of  debts  due  to  the  United  States,  fit 
them  for  use  by  those  who  see  fit  to  use  them  in  all  the  transactions  of 
commerce,  provide  for  their  redemption,  and  make  them  a  currency  uni- 
form in  value  and  description,  and  convenient  and  useful  for  circulation. 
Veazie  Bank  v.  Fenno,  8  Wall.  533. 

In  order  to  borrow,  the  government  must  have  credit,  and  if,  in  the 
judgment  of  Congress,  it  is  either  necessary  or  proper,  in  order  to  enhance 
the  credit  of  the  government  promises,  to  make  them  a  legal  tender  in  the 
payment  of  private  as  well  as  public  debts,  it  has  the  right  to  do  so.  Rid- 
dlesbarger  v.  McDaniel,  38  Mo.  138;  Hague  v.  Powers,  39  Barb.  427  ;. 
Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400 ;  Thayer  v.  Hedges,  23  Ind. 
141 ;  Breitenbach  v.  Turner,  18  Wis.  140  ;  Reynolds  v.  Bank,  18  Ind.  467; 
Maynard  v.  Newman,  I  Nev.  271  ;  Carpenter  v.  Northfield  Bank,  39  Vt. 
46  ;  Shollenberger  v.  Brinton.  52  Penn.  9  ;  Verges  v.  Giboney,  38  Mo.  458; 
contra,  Thayer  v.  Hedges,  22  Ind.  282  ;  Griswold  v.  Hepburn,  2  Duvall,  20. 

Congress,  by  suitable  enactments,  may  restrain  the  circulation,  as  money, 
of  any  notes  not  issued  by  itself.  Veazie  Bank  v.  Fenno,  8  Wall.  533. 


\l 


26  CONSTITUTION    OF    THE    UNITED    STATES. 


Commerce. 

(f)  The  design  and  object  of  this  power  was  to  establish  a  perfect 
•equality  among  the  several  States,  as  to  commercial  rights,  and  to  prevent 
unjust  and  invidious  distinctions  which  local  jealousies  or  local  and  partial 
interests  might  be  disposed  to  introduce  and  maintain.  These  were  the 
views  pressed  upon  the  public  attention  by  the  advocates  for  the  adoption 
of  the  Constitution,  and  the  decisions  have  been  in  accordance  therewith. 
Veazie  v.  Moor,  14  How  568  ;  s.  C.  32  Me.  343. 

Although  the  power  to  regulate  is  given  in  the  same  words  in  relation 
to  commerce  with  foreign  nations,  among  the  States  and  with  the  Indian 
tribes,  yet,  as  the  subject  to  be  regulated  is  different  in  each  case;  and  as 
the  relation  in  which  Congress  stands  to  the  parties  is  also  different,  there 
is  good  reason  for  giving  different  effect  to  the  same  granting  words  in  the 
.several  cases.  Surely  it  can  not  be  that  Congress  may  exercise  the  same 
powers  in  regulating  commerce  among  the  States  as  it  exercises  in  regu- 
lating commerce  with  the  Indian  tribes.  If  this  be  admitted,  it  must  also 
be  admitted  that  the  identity  of  the  language  in  which  the  power  is  given 
to  regulate  commerce  with  foreign  nations,  and  among  the  several  States, 
does  not  prove  that  the  power  itself  is  as  to  its  extent,  and  the  modes  of  its 
legitimate  exercise  identical  in  both  cases.  Comm.  z/.  Griffin,  3  B.  Mon. 
208. 

The  power  is  a  power  to  regulate,  that  is,  to  prescribe  the  rule  by 
which  commerce  is  to  be  governed.  This  power,  like  all  others  vested  in 
Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost  extent,  and 
acknowledges  no  limitations  other  than  are  prescribed  in  the  Constitution. 
The  power  over  commerce  with  foreign  nations  and  among  the  several 
States  is  vested  in  Congress  as  absolutely  as  it  would  be  in  a  single  gov- 
ernment having  in  its  Constitution  the  same  restrictions  on  the  exerctee  of 
the  power  as  are  found  in  the  Constitution  of  the  United  States.  Gibbons 
•v.  Ogden,  9  Wheat.  I ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  150. 

Commerce  undoubtedly  is  traffic,  but  it  is  something  more  :  it  is  inter- 
course. It  describes  commercial  intercourse  between  nations  and  parts  of 
nations  in  all  its  branches,  and  is  regulated  by  prescribing  rules  for  carry- 
ing on  that  intercourse.  Gibbons  v.  Ogden,  9  Wheat.  I  ;  S.  C.  17  Johns. 
488;  4  Johns.  Ch.  150;  Steamboat  Co.  v.  Livingston,  3  Cow.  713  ;  S.  C.  I 
Hopk.  150;  Brown  z/.  State,  12  Wheat.  419;  Groves  v.  Slaughter,  15  Pet. 
449  ;  Mitchell  v.  Steelman,  8  Cal.  363. 

Navigation  is  only  one  of  the  elements  of  commerce.  It  is  an  element 
of  commerce  because  it  affords  the  means  of  transporting  passengers  and 
merchandise,  the  interchange  of  which  is  commerce.  Any  other  mode  of 
effecting  this  is  as  much  an  element  of  commerce  as  navigation.  Clinton 
Bridge,  I  Wool.  150  ;  S.  C.  10  Wall.  454. 


COMMERCE.  27 

The  word  "  commerce  "  comprehends  navigation  within  its  meaning,  \^- 
and  a  power  to  regulate  navigation  is  as  expressly  granted  as  if  that  term 
had  been  added  to  the  word  "commerce."  Gibbons  v.  Ogden,  9  Wheat, 
i ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  150;  Steamboat  Co.  v.  Livingston,  3 
Cow.  713;  S.  C.  i  Hopk.  150;  Brig  Wilson  v.  U.  S.  I  Brock.  423;  Chap- 
man v.  Miller,  2  Spears,  769  ;  Passenger  Cases,  7  How.  283  ;  S.  C.  45  Mass. 
282;  Cooley  v.  Philadelphia,  12  How.  299. 

The  word  commerce  refers  to  trade.     U.  S.  v.  Bailey,  i  McJLean,  234. 

The  term  "intercourse"  includes  the  transportation  of  passengers. 
People  v.  Raymond,  34  Cal.  492. 

Commerce  is  a  unit,  its  several  parts  so  united  and  bound  together  as 
to  be  inseparable,  and  as  intercourse  is  a  component  part  of  commerce, 
the  power  to  regulate  commerce  includes  the  power  to  regulate  intercourse.   * 
The  power  comes  from  the  grant,  and  is  co-extensive  with  the  subject  to 
which  it  relates.     Lin  Sing  v.  Washburn,  20  Cal.  534. 

Commerce  comprehends  intercourse  for  the  purposes  of  trade  in  any  and 
all  its  forms,  including  the  transportation,  purchase,  sale  and  exchange  of 
commodities  between  the  citizens  of  the  United  States  and  the  citizens  or 
subjects  of  other  countries,  and  between  the  citizens  of  the  different  States. 
Welton  v.  State,  91  U.  S.  275:  s.  C.  55  Mo.  288. 

The  word  commerce,  as  here  used,  is  not  limited  to  the  mere  buying 
and  selling  of  merchandise  and  other  commodities,  but  comprehends  the 
entire  commercial  intercourse  with  foreign  nations  and  among  the  several 
States.  It  includes  navigation  as  well  as  traffic  in  its  ordinary  significa- 
tion, and  embraces  ships  and  vessels  as  the  instruments  of  intercourse  and 
trade,  as  well  as  the  officers  and  seamen  who  control  and  navigate  them. 
People  v.  Brooks,  4  Denio,  469. 

The  words  of  this  clause  comprehend  every  species  of  commercial  in- 
tercourse between  the  Unked  States  and  foreign  nations.  No  sort  of  trade 
can  be  carried  on  between  this  country  and  any  other  to  which  this  power  ' 
does  not  extend.  Commerce,  as  the  word  is  used  in  the  Constitution,  is  a 
unit,  every  part  of  which  is  indicated  by  the  term.  Gibbons  v.  Ogden,  9 
WTheat.  i  ;  S.  C.  17  Johns.  488;  4  Johns.  Ch.  150. 

It  makes  no  difference  whether  the  interchange  of  commodities  is  by 
land  or  by  water.  In  either  case  the  bringing  of  the  goods  from  the  seller 
to  the  buyer  is  commerce.  State  Freight  Tax,  1 5  Wall.  232  ;  Clinton 
Bridge,  i  Wool.  150;  s.  C.  10  Wall.  454. 

By  the  term  commerce  is  meant  not  traffic  only,  but  every  species  of 
commercial  intercourse,  every  communication  by  land  or  by  water,  foreign 
and  domestic,  external  and  internal.  State  v.  Del.  L.  &  W.  R.  R.  Co.  30 
N.  J.  473;  s.  C.  31  N.  J.  531. 


28  CONSTITUTION    OF    THE    UNITED    STATES. 

The  power  to  regulate  commerce  extends  to  persons  as  well  as  things. 
Lin  Sing  v.  Washburn,  20  Cal.  534. 

Communication  by  telegraph  is  a  part  of  commerce.     West.  U.  Tel. 
^     Co.  v.  Atlantic  &  Pac.  Tel.  Co.  5  Nev.  102 ;  Penn.  Tel.  Co.  v.  W.  U.  Tel. 
Co.  2  Woods,  643. 

The  transportation  of  freight  or  of  the  subjects  of  commerce  for  the 
purpose  of  exch'ange  or  sale  is  a  constituent  of  commerce.  State  Freight 
Tax,  15  Wail.  232. 

The  power  to  regulate  commerce  embraces  all  the  instruments  by 
which  it  may  be  carried  on.  Welton  v.  State,  91  U.  S.  275;  s.  c.  55  Mo. 
288.  - 

The  power  includes  commerce  carried  on  by  corporations  as  well  as 
commerce  carried  on  by  individuals.  Paul  u.  Virginia,  8  Wall.  168. 

The  language  of  the  grant  makes  no  reference  to  the  instrumentalities 
by  which  commerce  may  be  carried  on.  It  includes  alike  commerce  by 
individuals,  partnerships,  associations  and  corporations.  Paul  v.  Virginia, 
8  Wall.  1 68. 

Congress  has  the  power  to  regulate  the  vessels  as  well  as  the  articles 
they  bring.  Brig  Wilson  v.  U.  S.  I  Brock.  423. 

The  power  of  Congress  to  regulate  commerce  extends  to  all  the  im- 
mediate agents  and  vehicles  of  commerce,  and  as  it  extends  to  these 
vehicles  for  some  purposes,  it  must  for  all.  Mitchell  v.  Steelman,  8  Cal. 
363. 

The  power  to  regulate  navigation  is  the  power  to  prescribe  rules  in 
conformity  with  which  navigation  must  be  carried  on.  It  extends  to  the 
persons  who  conduct  it  as  well  as  to  the  instruments  used.  Cooley  v. 
Philadelphia,  12  How.  299. 


J 


The  power  extends  to  the  regulation  of  the  navigation  of  vessels  en- 
gaged in  conveying  passengers,  whether  steam  vessels  or  of  any  other 
description,  as  well  as  to  the  navigation  of  vessels  engaged  in  traffic  merely. 
Murphy  v.  Northern  Transportation  Co.  15  Ohio  St.  553;  People  v.  Ray- 
mond, 34  Cal.  492;  Gibbons  v.  Ogden,  9  Wheat.  I ;  S.  C.  17  Johns.  488;  4 
Johns.  Ch.  150;  Passenger  Cases,  7  How.  283;  S.  C.  45  Mass.  282. 

A  coasting  vessel  employed  in  the  transportation  of  passengers  is  as 
much  a  portion  of  the  American  marine  as  one  employed  in  the  transporta- 
tion of  a  cargo,  and  no  reason  is  perceived  why  such  vessel  should  be 
withdrawn  from  the  regulating  power  of  that  government  which  has  been 
thought  best  fitted  for  the  purpose  generally.  Gibbons  v.  Ogden,  9  Wheat. 
i ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  282. 

The  power  authorizes  all  appropriate  legislation  for  the  protection  or 
advancement  of  either  interstate  or  foreign  commerce,  and  for  that  pur- 


COMMERCE.  29 

pose  such  legislation  as  will  insure  the  convenient  and  safe  navigation  of 
all  the  navigable  waters  of  the  United  States,  whether  that  legislation  con- 
sists in  requiring  the  removal  of  obstructions  to  their  use,  or  in  subjecting 
the  vessels  to  inspection  and  license,  in  order  to  insure  their  proper  con- 
struction and  equipment.  The  Daniel  Ball,  10  Wall.  557;  S.  C.  I  Brown, 
193- 

The  power  to  regulate,  control  or  extinguish  the  liens  given  by  the 
maritime  law  for  material-men  upon  foreign  vessels  does  not  differ  from 
the  power  to  regulate  the  shipping  of  seamen  or  the  navigation  of  foreign 
vessels.  The  Barque  Chusan,  2*  Story,  455. 

The  prescribing  of  rules  for  the  shipping  of  seamen  and  the  navigation 
of  vessels  engaged  in  the  foreign  trade,  or  trade  between  the  States,  is  a 
regulation  of  commerce.  The  Barque  Chusan,  2  Story,  455. 

The  passage  of  laws  which  concern  the  admission  of  citizens  and  sub- 
jects of  foreign  nations  to  our  shores,  belongs  to  Congress,  and  not  to  the 
States.  It  has  the  power  to  regulate  commerce  with  foreign  nations.  The 
responsibility  for  the  character  of  those  regulations,  and  the  manner  of 
their  execution,  belongs  solely  to  the  national  government.  Chy  Lung  v. 
Freeman,  92  U.  S.  275. 

The  power  to  regulate  commerce  includes  the  power  to  prohibit  the 
migration  or  importation  of  any  persons  whatever  into  the  States,  except 
so  far  as  this  power  may  be  restrained  by  other  clauses  of  the  Constitution. 
Brig  Wilson  v.  U.  S.  I  Brock.  423  ;  Gibbons  v.  Ogden,  9  Wheat.  I ;  S.  C. 
17  Johns.  488;  4  Johns.  Ch.  150;  Passenger  Cases,  7  How.  283;  S.  C.  45 
Mass.  282 ;  People  v.  Downer,  7  Cal.  169. 

Congress  has  the  power  to  prohibit  the  importation  of  slaves  into  the 
United  States.  U.  S.  v.  Gould,  8  A.  L.  Reg.  525 ;  U.  S.  v.  Haun,  8  A. 
L.  Reg.  663. 

Congress  has  the  power  to  punish  any  person  who  holds  or  sells  a  slave 
imported  from  a  foreign  country,  although  the  slave  has  passed  out  of  the 
hands  of  the  importer.  U.  S.  v.  Haun,  8  A.  L.  Reg.  663  ;  contra,  U.  S.  v. 
Gould,  8  A.  L.  Reg.  525. 

The  power  to  regulate  commerce  confers  no  power  on  Congress  to  de- 
clare the  status  which  any  person  shall  sustain  while  in  any  State.  It 
ceases  in  the  case  of  passengers  when  they  arrive  in  the  State.  Lemmon 
v.  People,  26  Barb.  270;  s.  C.  20  N.  Y.  562;  2  Sandf.  681. 

The  issuing  of  a  policy  of  insurance  is  not  a  transaction  of  commerce. 
Such  policies  are  like  other  personal  contracts  between  parties,  which  are 
completed  by  their  signature  and  the  transfer  of  the  consideration.  They 
are  not  interstate  transactions,  though  the  parties  may  be  domiciled  in  dif- 
ferent States.  Paul  v.  Virginia,  8  Wall.  168. 


3O  CONSTITUTION    OF    THE    UNITED    STATES. 

It  was  never  intended  that  this  power  should  be  exercised  so  as  to  in- 
terfere with  private  contracts  not  designed,  at  the  time  they  were  made,  to 
create  impediments  to  commercial  intercourse.  Railroad  Co.  v.  Richmond, 
19  Wall.  584. 

A  law  passed  to  induce  immigration  for  the  purpose  of  settlement  is  a 
regulation  of  commerce,  and  the  Federal  Government  may  pass  such  a 
law  for  immigration,  either  temporary  or  permanent,  as  an  essential  ingre- 
dient of  intercourse  and  traffic.  Lin  Sing  -v.  Washburn,  20  Cal.  534. 

Congress  may  pass  laws  for  the  regulation  of  seamen  to  be  employed 
in  the  merchant  service,  for  otherwise  commerce  could  not  be  carried  on, 
Ex  parte  Wm.  Pool,  2  Va.  Cas.  276. 

Congress,  having  created  vessels  of  the  United  States,  has  the  power 
to  pass  a  recording  act  for  the  security  and  protection  of  all  persons  deal- 
ing therein.  White's  Bank  z/.  Smith,  7  Wall.  646  ;  Mitchell  v.  Steelman,  8 
Cal.  363  ;  Shaw  v.  McCandless,  36  Miss.  296  ;  Blanchard  v.  The  Martha 
Washington,  I  Cliff.  463  ;  Foster  v.  Chamberlain,  41  Ala.  158. 

The  regulation  of  the  qualification  of  pilots,  of  the  modes  and  times  of 
offering  and  rendering  their  services,  of  the  responsibilities  which  shall  rest 
upon  them,  of  the  powers  they  shall  possess,  of  the  compensation  which 
they  may  demand,  and  of  the  penalties  by  which  their  rights  and  duties 
may  be  enforced,  is  a  regulation  of  navigation.  Cooley  v.  Philadelphia,  12 
How.  299;  Dryden  v.  Comm.  16  B.  Mon.  598  ;  Cisco  z/.  Roberts,  6  Bosw. 
494;  Edwards  v.  Panama,  I  Oregon,  418. 

The  passage  of  an  act  of  Congress  relating  to  pilots  does  not  release  a 
party  from  a  penalty  incurred  under  a  State  law  which  is  thereby  super- 
seded. Sturges  v.  Spofford,  45  N.  Y.  446. 

The  power  to  regulate  commerce  is  not  to  be  confined  to  the  adoption 
of  measures  exclusively  beneficial  to  commerce  itself,  or  tending  to  its  ad- 
vancement, but  in  the  national  system,  as'in  all  modern  sovereignties,  it  is 
also  to  be  considered  as  an  instrument  for  other  purposes  of  general  policy 
and  interest.  The  mode  of  its  management  is  a  consideration  of  great 
delicacy  and  importance,  but  the  national  right  or  power  under  the  Consti- 
tution to  adapt  regulations  of  commerce  to  other  purposes  than  the  mere 
advancement  of  commerce  is  unquestionable.  The  capacity  and  power  of 
managing  and  directing  it  for  the  advancement  of  great  national  purposes 
is  an  important  ingredient  of  sovereignty.  The  degree  and  extent  of  the 
prohibitions  can  only  be  adjusted  by  the  discretion  of  the  national  govern- 
ment to  whom  the  subject  is  committed.  U.  S.  v.  The  William,  2  Am.  L. 
J-  255- 

Every  subject  falling  within  the  legitimate  sphere  of  commercial  regula- 
tion may  be  partially  or  wholly  excluded  when  either  measure  shall  be  de- 
manded by  the  safety  or  by  the  important  interests  of  the  entire  nation. 


COMMERCE.  31 

Such  exclusion  can  not  be  limited  to  particular  classes  or  descriptions  of 
commercial  subjects.  It  may  embrace  manufactures,  bullion,  coin,  or  any 
other  thing.  The  power  once  conceded,  it  may  operate  on  any  and  every 
subject  of  commerce  to  which  the  legislative  discretion  extends.  U.  S  v. 
Marigold,  9  How.  560. 

This  power  authorizes  all  appropriate  legislation  for  the  protection  or 
advancement  of  either  interstate  or  foreign  commerce,  and  for  that  pur- 
pose such  legislation  as  will  insure  the  convenient  and  safe  navigation  of 
all  the  navigable  waters  of  the  United  States,  whether  that  legislation  con- 
sists in  requiring  the  removal  of  obstructions  to  their  use,  in  prescribing 
the  form  and  size  of  the  vessels  employed  upon  them,  or  subjecting  the 
vessels  to  inspection  and  license  in  order  to  secure  their  proper  construc- 
tion and  equipment.  The  Daniel  Ball,  10  Wall.  557;  S.  C.  I  Brown,  193. 

Commerce  with  foreign  nations  and  among  the  several  States  means 
nothing  more  than  intercourse  with  those  nations  and  among  those  States, 
for  the  purposes  of  trade,  be  the  object  of  that  4rade  what  it  may,  and  this 
intercourse  must  include  all  the  means  by  which  it  can  be  carried  on, 
whether  by  the  free  navigation  of  the  waters  of  the  several  States,  or  by  a 
passage  over  land  through  the  States  where  such  passage  becomes  neces- 
sary to  the  commercial  intercourse  between  the  States.  It  is  this  inter- 
course which  Congress  is  invested  with  the  power  of  regulating,  and  with 
which  no  State  has  a  right  to  interfere.  Corfield  v.  Coryell,  4  Wash.  C.  C. 
371 ;  Moor  z/.  Veazie,  31  Me.  360;  S.  C.  32  Me.  343. 

It  can  not  be  properly  concluded  that,  because  the  products  of  domestic 
enterprise  in  agriculture  or  manufactures,  or  in  the  arts,  may  ultimately 
become  the  subjects  of  foreign  commerce,  that  the  control  of  the  means  or 
the  encouragement  by  which  the  enterprise  is  fostered  and  protected,  is 
legitimately  within  the  import  of  the  phrase  "  foreign  commerce,"  or  fairly 
implied  in  any  investiture  of  the  power  to  regulate  such  commerce.  A 
pretension  as  far  reaching  as  this  would  extend  to  contracts  between  citizen 
and  citizen  of  the  same  Sta^e,  would  control  the  pursuits  of  the  planter, 
the  grazier,  the  manufacturer,  the  mechanic,  the  immense  operations  of 
the  collieries  and  the  mines,  for  there  is  not  one  of  these  avocations  the 
results  of  which  may  not  become  the  subjects  of  foreign  commerce,  and 
be  borne  either  by  turnpikes,  canals  or  railroads  from  point  to  point  within 
the  several  States  towards  its  ultimate  destination.  Veazie  v.  Moor,  14 
How.  568;  S.  C.  32  Me.  343. 

A  license  to  prosecute  the  coasting  trade  is  a  warrant  to  traverse  the 
waters  washing  or  bounding  the  coasts  of  the  United  States.  Such  a  li- 
cense conveys  no  privilege  to  use,  free  of  tolls  or  of  any  condition  whatso- 
ever, the  canals  constructed  by  a  State,  or  the  watercourses  partaking  of 
the  character  of  canals  exclusively  within  the  interior  of  a  State,  and  made 
practicable  for  navigation  by  the  funds  of  the  State  or  by  privileges  she 


32  CONSTITUTION    OF    THE    UNITED    STATES. 

may  have  conferred  for  the  accomplishment  of  the  same  end.     Veazie  v. 
Moor,  14  How.  568  ;  s.  C.  32  Me.  343. 

The  coasting  trade  means  commercial  intercourse  carried  on  between 
different  districts  in  different  States,  between  different  districts  in  the  same 
State,  and  between  different  places  in  the  same  district  on  the  sea  coast  or 
on  a  navigable  river.  Steamboat  Co.  v.  Livingston,  3  Cow.  713;  S.  C.  I 
Hopk.  150  ;  People  v.  Railroad  Co.  15  Wend.  113. 

An  enrollment  and  license  confer  no  immunity  from  the  operation  of 
the  valid  laws  of  a  State.  If  a  vessel  of  the  United  States,  engaged  in 
commerce  between  two  States,  is  interrupted  by  a  law  of  a  State,  the 
question  arises  whether  the  State  had  the  power  to  make  the  law,  by  force 
of  which  the  voyage  was  interrupted.  This  question  must  be  decided  in 
each  case  upon  its  own  facts.  Smith  v.  State,  18  How.  71. 

The  commerce  among  the  States,  which  Congress  has  the  power  to 
regulate  either  directly  or  incidentally,  is  that  commerce  which  may  be 
carried  on  by  vessels  regularly  licensed  by  the  laws  of  Congress.  Steam- 
boat Co.  v.  Livingston,  3  Cow.  713  ;  S.  C.  I  Hopk.  150. 

The  commercial  power  can  only  be  exercised  and  carried  out  by  legis- 
lation. There  is  no  common  law  in  regard  to  regulations  of  navigation. 
In  this  respect  the  legislation  of  Congress  is  the  only  remedy  known  to  the 
Constitution.  U.  S.  v.  Railroad  Bridge  Co.  6  McLean,  517. 

The  word  "  among "  means  intermingled  with.  A  thing  which  is 
among  others  is  intermingled  with  them.  Commerce  among  the  States 
can  not  stop  at  the  external  boundary  line  of  ea^h  State,  but  may  be  intro- 
duced into  the  interior.  Commerce  among  the  States  must  of  necessity  be 
commerce  with  the  States.  The  power  of  Congress,  whatever  it  may  be, 
must  be  exercised  within  the  territorial  jurisdiction  of  the  several  States. 
Gibbons  v.  Ogden,  9  Wheat,  i  ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  150; 
Steamboat  Co.z/.  Livingston,  3  Cow.  713;  S.  C.  I  Hopk.  150;  Brown  v, 
State,  12  Wheat.  419;  Moor  v.  Veazie,  31  Me.  360;  S.  C.  32  Me.  343  ; 
Oilman  v.  Philadelphia,  3  Wall.  713  ;  contra,  Livingston  v.  Van  Ingen,  9 
Johns.  507  ;  North  River  Co.  v.  Hoffman,  5  Johns.  Ch.  300. 

Whenever  an  article  has  begun  to  move  as  an  article  of  trade  from  one 
State  to  another,  commerce  in  that  commodity  between  the  States  has 
commenced.  The  fact  that  several  different  and  independent  agencies  are 
employed  in  transporting  the  commodity,  some  acting  entirely  in  one  State, 
and  some  acting  through  two  or  more  States,  does  in  no  respect  affect  the 
character  of  the  transaction.  To  the  extent  in  which  each  agency  acts  in 
that  transportation,  it  is  subject  to  the  regulation  of  Congress.  The  Dan- 
iel Ball,  10  Wall.  557;  S.  C.  I  Brown,  193. 

The  lightering  or  towing  of  vessels  is  but  a  prolongation  of  the  voyage 
of  the  vessels  assisted  to  their  port  of  destination,  and  the  vessels  so  en- 


COMMERCE.  33 

gaged  are  entitled  to  the  privileges  of  vessels  engaged  in  the  coasting  trade, 
although  they  are  employed  only  within  the  limits  of  the  State.  Foster  v. 
Davenport,  22  How.  244. 

Congress  has  the  power  to  regulate  an  agency  employed  in  commerce 
between  the  States,  whether  that  agency  extends  through  two  or  more 
States,  or  is  confined  in  its  action  entirely  within  the  limits  of  a  single 
State.  The  Daniel  Ball,  10  Wall.  557;  S.  C.  I  Brown,  193;  vide  The 
Bright  Star,  Wool.  266. 

The  exercise  of  this  power  is  not  limited  by  bounds  of  any  State.  Ves- 
sels may  be  authorized  to  navigate  waters  within  the  bounds  of  a  State, 
and  to  pass  through  a  State,  if  it  be  practicable  to  do  so,  while  employed  in 
commerce  with  foreign  nations  or  among  the  States.  The  power  was  con- 
ferred without  regard  to  the  jurisdiction  of  the  States.  The  limits  of  a 
State  do  not  constitute  any  portion  of  the  elements  by  which  the  extent  of 
the  power  is  to  be  ascertained  and  determined.  Moor  v.  Veazie,  32  Me. 
343;  s.  c.  31  Me.  360. 

The  transportation  of  a  passenger  is  not  complete  until  he  is  disem- 
barked, and  any  law  which  prescribes  the  terms  on  which  alone  a  vessel 
can  discharge  her  passengers,  is  a  regulation  of  commerce.  Henderson  v. 
Mayor,  92  U.  S.  259. 

The  power  extends  to  every  part  of  the  voyage,  and  may  regulate  those 
who  conduct  or  assist  in  conducting  navigation  in  one  part  of  a  voyage,  as 
much  as  in  another  part  or  during  the  whole  voyage.  Cooley  v.  Philadel- 
phia, 12  How.  299. 

Congress  has  the  power  to  prescribe  all  needful  and  proper. regulations 
for  the  conduct  of  the  traffic  over  any  railroad  which  has  voluntarily  be- 
come part  of  a  line  of  interstate  communication,  or  authorize  the  creation 
of  such  roads  when  the  purposes  of  interstate  transportation  of  persons  and 
property  justify  or  require  it.  Clinton  Bridge,  I  Wool.  150  ;  S.  C.  10  Wall. 
454- 

The  power  to  prescribe  the  conditions  upon  which  a  vessel  shall  be 
employed  as  an  instrument  of  interstate  and  foreign  commerce  necessarily 
carries  with  it  the  power  to  modify  the  rights  of  those  who  use  it,  whether 
for  the  purposes  of  domestic  commerce,  or  for  the  purposes  of  interstate  or 
foreign  commerce.  Lord  v.  G.  N.  &  P.  Steamship  Co.  14  Pac.  L.  R. 
297. 

The  power  to  regulate  commerce  does  not  include  the  means  by  which 
commerce  is  carried  on  within  a  State.  Canals,  turnpikes,  bridges  and 
railroads,  are  as  necessary  to  the  commerce  between  and  through  the  sev- 
eral States,  as  rivers,  yet  Congress  has  never  pretended  to  regulate  them. 

3 


34  CONSTITUTION    OF    THE    UNITED    STATES. 

The  Passaic  Bridges,  3  Wall.  782;    Veazie  v.  Moor,  14  How.  568  ;    s.  C. 
32  Me.  343  ;  Withers  2/.  Buckley,  20  How.  84;  s.  C.  29  Miss.  21. 

In  regulating  commerce  with  foreign  nations,  the  power  of  Congress 
does  not  stop  at  the  jurisdictional  lines  of  the  several  States.  It  would  be 
a  very  useless  power  if  it  could  not  pass  those  lines.  The  commerce  of 
/the  United  States  with  foreign  nations  is  that  of  the  whole  United 
(States.  Every  district  has  a  right  to  participate  in  it.  The  deep  streams 
which  penetrate  the  country  in  every  direction,  pass  through  the  interior  of 
almost  every  State  in  the  Union,  and  furnish  the  means  of  exercising  the 
right.  If  Congress  has  the  power  to  regulate  it,  that  power  must  be  ex- 
ercised whenever  the  subject  exists.  If  it  exists  within  the  States,  if  a 
foreign  voyage  may  commence  or  terminate  at  a  port  within  a  State,  then 
the  power  of  Congress  may  be  exercised  within  a  State.  Gibbons  v.  Og- 
den,  9  Wheat.  I ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  150. 


Rivers. 

The  power  comprehends  the  control  to  the  extent  necessary  for  the 
purpose  of  regulating  commerce  of  all  navigable  waters  of  the  United 
States,  which  are  accessible  from  a  State  other  than  those  in  which  they 
they  lie.  For  this  purpose  they  are  the  public  property  of  the  nation,  and 
subject  to  all  the  requisite  legislation  of  Congress.  Corfield  v.  Coryell,  4 
Wash.  C.  C.  371  ;  Bennett  v.  Boggs,  Bald.  60;  Pollard  v.  Hagan,  3  How. 
212  ;  Oilman  v.  Philadelphia,  3  Wall.  713. 

The  exercise  of  the  power  is  not  restricted  to  waters  in  which  the  tide 
ebbs  and  flows.  There  may  be  commerce  and  navigation  with  foreign  na- 
tions and  among  the  States  upon  the  fresh  water  lakes  and  rivers,  and  to 
the  regulation  of  such  navigation  the  power  will  extend.  Moor  v.  Veazie, 
31  Me.  360;  s.  C.  32  Me.  343. 

The  extent  to  which  the  power  of  Congress  to  regulate  navigation  has 
been  conferred,  and  to  which  it  may  be  exclusively  exercised,  is  ascertain- 
able  by  ascertaining  the  simple  fact  whether  a  vessel  can  be  navigated 
from  a  port  or  place  within  a  State,  to  a  port  or  place  within  a  foreign 
country  or  within  another  State.  Moor  v.  Veazie,  31  Me.  360;  S.  c.  32 
Me.  343. 

The  power  is  confined  to  those  streams  which  are  channels  of  com- 
merce between  the  States — such  as  are  navigable  in  fact  for  vessels  of 
commerce  coming  out  of  and  returning  into  the  navigable  waters  of  other 
States  by  continuous  voyages.  Neaderhouser  v.  State,  28  Ind.  257. 

Wherever  a  stream  in  its  course  ceases  to  be  a  public  highway  for  the 
commerce  between  States,  at  that  point  its  national  character  terminates, 


RIVERS.  35 

.and  above  that  it  is  within  the  exclusive  jurisdiction  of  the  State.     Nead- 
erhouser v.  State,  28  Ind.  257. 

Streams,  where  they  are  only  navigable  for  certain  kinds  of  inferior 
craft,  or  for  certain  distances  within  the  State,  and  where  they  are  not  vis- 
ited by  vessels  of  commerce  coming  from  and  going  to  the  navigable 
waters  of  other  States  by  continuous  voyages,  are  subject  only  to  the  ju- 
risdiction of  the  State.  Neaderhouser  v.  State,  28  Ind.  257. 

It  is  not  every  ditch  in  which  the  tide  ebbs  and  flows  through  the  exten- 
sive salt  marshes  along  the  coast,  and  which  serve  to  admit  and  drain  off 
the  salt  water  from  the  marshes,  that  can  be  considered  a  navigable  stream. 
Nor  is  every  small  creek  in  which  a  fishing  skiff  or  gunning  canoe  can  be 
made  to  float,  deemed  navigable,  but  in  order  to  have  this  character  it  must 
be  navigable  for  some  general  purpose  useful  to  trade  or  business.  Withers 
•v.  Buckley,  20  How.  84 ;  S.  C.  29  Miss.  21 ;  Boykin  v.  Shaffer,  13  La.  Ann. 
129;  Groten  v.  Hurlburt,  22  Conn.  178;  Wethersfield  v.  Humphrey,  20 
Conn.  213  ;  Depew  v.  Trustees,  5  Ind.  8  ;  Glover  v.  Powell,  10  N.  J.  Eq. 
21 1 ;  Neaderhouser  v.  State,  28  Ind.  257;  Rowe  v.  Granite  Bridge,  38 
Mass  344;  Butler  z/.  State,  6  Ind.  165. 

Rivers  are  navigable  waters  of  the  United  States,  in  contradistinction 
from  the  navigable  waters  of  the  States,  when  they  form  in  their  ordinary 
condition  by  themselves  or  by  uniting  with  other  waters,  a  continued 
highway,  over  which  commerce  is  or  may  be  carried  on  with  other  States 
or  foreign  countries,  in  the  customary  modes  in  which  such  commerce  is 
conducted  by  water.  The  Daniel  Ball,  10  Wall.  557;  S.  C.  I  Brown,  193. 

The  doctrine  of  the  common  law  as  to  the  navigability  of  waters,  has 
no  application  to  this  country.  'Here  the  ebb  and  flow  of  the  tide  do  not 
constitute  any  test  of  the  navigability  of  waters.  The  Daniel  Ball,  10 
Wall.  557;  S.  C.  i  Brown,  193. 

The  true  test  of  the  navigability  of  a  stream  does  not  depend  on  the 
mode  by  which  commerce  is  or  may  be  conducted,  nor  the  difficulties  at- 
tending navigation.  The  capability  of  use  by  the  public  for  purposes  of 
transportation  and  commerce,  affords  the  true  criterion  of  the  navigability 
of  a  river,  rather  than  the  extent  and  manner  of  that  use.  If  it  is  capable 
in  its  natural  state  of  being  used  for  purposes  of  commerce,  no  matter  in 
what  mode  the  commerce  may  be  conducted,  it  is  navigable  in  fact,  and 
becomes  in  law  a  public  river  or  highway.  The  Montello,  20  Wall.  430. 

Those  rivers  are  public  navigable  rivers  in  law  which  are  navigable  in 
fact.  The  Daniel  Ball,  10  Wall.  557;  S.  C.  I  Brown,  193. 

Rivers  are  navigable  in  fact  when  they  are  used,  or  are  susceptible  of 
being  used  in  their  ordinary  condition  as  highways  for  commerce  over 
which  trade  and  travel  are  or  may  be  conducted  in  the  customary  modes 


36  CONSTITUTION    OF    THE    UNITED    STATES. 

of  trade  and  travel  on  water.    The  Daniel  Ball,  10  Wall.  557 ;  s.  C.  I  Brown,, 
193- 

If  a  river  divides  into  two  channels,  Congress  may  erect  works  to  divert 
the  water  from  one  channel  into  tl\e  other  for  the  purpose  of  improving  the 
navigation.  South  Carolina  v.  Georgia,  93  U.  S.  4. 

Congress  has  the  power  to  control  navigable  rivers  between  States  to- 
the  extent  of  improving  their  navigability.  South  Carolina  v.  Georgia,  93 
U.S.  4. 

If  the  natural  navigation  of  a  river  is  such  that  it  affords  a  channel  for 
useful  commerce,  the  river  is  navigable  in  fact,  although  its  navigation  may 
be  encompassed  with  difficulties  by  reason  of  natural  barriers,  such  as  rapids 
and  sand  bars.  The  Montello,  20  Wall.  430. 

Each  State,  in  its  capacity  as  sovereign,  owns  the  navigable  waters  and 
the  soil  under  them  within  its  limits.  Martin  v.  Waddell,  16  Pet.  367 ;  Pol- 
lard v.  Hagan,  3  How.  212 ;  Den  v.  Jersey  Co.  1 5  How.  426 ;  Smith  v.  State, 
18  How.  71. 

The  territorial  limits  of  a  State  extend  a  marine  league,  or  three 
geographical  miles,  from  the  shore.  Dunham  v.  Lamphere,  69  Mass. 
268. 

In  ascertaining  the  line  of  the  shore,  the  limit  does  not  follow  each  nar- 
row inlet  or  arm  of  the  sea,  but  when  the  inlet  is  so  narrow  that  persons 
and  objects  can  be  discerned  across  it  by  the  naked  eye,  the  line  of  terri- 
torial jurisdiction  stretches  across  from  one  headland  to  another  of  such, 
inlet.  Dunham  v.  Lamphere,  69  Mass.  268. 


How  far  Exclusive. 

The  power  to  regulate  commerce  embraces  a  vast  field,  containing  not 
only  many,  but  exceedingly  various  subjects,  quite  unlike  in  their  nature  ; 
some  imperatively  demanding  a  single  uniform  rule  operating  equally  on  the 
commerce  of  the  United  States  in  every  port,  and  some  as  imperatively  de- 
manding that  diversity  which  alone  can  meet  the  local  necessities  of  navi- 
gation. Either  absolutely  to  affirm  or  deny  that  the  nature  of  this  power 
requires  exclusive  legislation  by  Congress,  is  to  lose  sight  of  the  nature  of 
the  subjects  of  this  power,  and  to  assert  concerning  all  of  them  what  is 
really  applicable  but  to  a  part.  Whatever  subjects  of  this  power  are  in  their 
nature  national,  or  admit  only  of  one  uniform  system  or  plan  of  regulation, 
may  justly  be  said  to  be  of  such  a  nature  as  to  require  exclusive  legislation 
by  Congress.  Cooley  v.  Philadelphia,  12  How.  299  ;  Newport  v.  Taylor,  16 
B.  Mon.  699 ;  Port  Wardens  v.  The  Martha  J.  Ward,  14  La.  Ann.  289 ;  Lem- 
mon  v.  People,  20  N.  Y.  562;  S.  C.  2  Sandf.  681 ;  26  Barb.  270;  Gilman  z/. 


STATE    LEGISLATION.  37 

Philadelphia,  3  Wall.  713  ;  Stewart  v.  Harry,  3  Bush,  438;  State  v.  Pinck- 
ney,  10  Rich. 474;  License  Cases,  5  How.  504;  s.  C.  13  N.H.  536;  Thames 
Bank  v.  Lovell,  18  Conn.  500 ;    U.  S.  v.  Bedford  Bridge,  i  W.  &  M.  401 
Savannah  v.   State,  4  Geo.  26 ;    Haldeman  v.  Beckwith,  4  McLean,  286 
Gibbons  v.  Ogden,  9  Wheat.  I  ;    s.  C.  17  Johns.  488  ;    4  Johns.  Ch.  150 
Steamboat  Co.  •z/.  Livingston,  3  Cow.  713  ;    s.  C.  I  Hopk.  150;    People  v. 
Railroad  Co.  15  Wend.  113;  The  Chusan,  2  Story,  455 ;  Chapman  v.  Miller, 
2  Spears,  769  ;  Passenger  Cases,  7  How.  283  ;  S.  C.  45  Mass.  282. 

Whenever  the  subjects  over  which  a  power  to  regulate  commerce  is  as- 
serted are  in  their  nature  national,  or  admit  of  one  uniform  system  or  plan 
of  regulation,  they  are  of  such  a  nature  as  to  require  exclusive  legislation 
by  Congress.  State  Freight  Tax,  15  Wall.  232. 

If  the  subject  is  local  and  not  national,  the  States  may  legislate  con- 
cerning it  in  the  absence  of  any  legislation  by  Congress.  Cooley  v.  Phila- 
delphia, 12  How.  299;  Edwards  v.  Panama,  I  Oregon,  418. 

The  transportation  of  passengers  or  merchandise  through  a  State,  or 
from  one  State  to  another,  is  of  such  a  nature  as  to  admit  of  but  one  regu- 
lating power ;  for  if  one  State  can  directly  tax  persons  or  property  passing 
through  it,  or  tax  them  indirectly  by  levying  a  tax  upon  their  transportation 
every  other  may,  and  thus  commercial  intercouse  between  States  remote 
from  each  other  may  be  destroyed.  State  Freight  Tax,  1 5  Wall.  232. 

The  power  to  regulate  the  right  to  land  passengers  in  the  United  States 
is  national,  and  belongs  exclusively  to  Congress.  Henderson  v.  Mayor,  92 
U.  S.  259;  State  v.  Constitution,  42  Cal.  578. 

That  portion  of  commerce  with  foreign  countries  and  between  the  States 
which  consists  in  the  transportation  and  exchange  of  commodities,  is  of 
national  importance,  and  admits  and  requires  uniformity  of  legislation. 
The  very  object  of  investing  this  power  in  the  general  government  was  to 
insure  this  uniformity  against  discriminating  State  legislation.  Welton  v. 
State,  91  U.  S.  275  ;  S.  C.  55  Mo.  288. 

When  Congress  makes  a  law  regulating  commerce,  its  authority  is 
paramount  and  exclusive,  and  supersedes  all  State  legislation  on  that  sub- 
ject. People  z/.  Raymond,  34  Cal.  492 ;  West.  Union  Tel.  Co.  v.  Atlantic 
&  Pac.  Tel.  Co.  5  Nev.  102. 

SI  a  Ic  Legislation. 

The  legislation  of  a  State  not  directed  against  commerce  or  any  of  its 
regulations,  but  relating  to  the  rights,  duties,  and  liabilities  of  citizens,  and 
only  indirectly  affecting  the  operations  of  commerce,  is  of  obligatory  force 
upon  citizens  within  its  territorial  jurisdiction,  whether  on  land  or  water, 
or  engaged  in  commerce,  foreign  or  interstate,  or  in  any  other  pursuit. 
Sherlock  v.  Ailing,  93  U.  S.  99. 


38  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  law  prohibiting  the  importation  from  other  States  of  cattle  which- 
are  calculated  to  communicate  disease  to  the  native  cattle  is  valid.  YeazeF 
^.Alexander,  58  111.254;  Stevens  v.  Brown,  58  111.  289 ;  Somerville  -v.  Marks, 
58  111.  371  ;  Wilson  v.  K.  C.  St.  Jo.  &  C.  B.  R.  R.  Co.  60  Mo.  184. 

A  State  law  giving  an  administrator  the  right  to  maintain  a  suit  where 
the  death  of  the  deceased  is  caused  by  the  wrongful  act  or  omission  of  an-  v 
other,  is  valid,  although  it  applies  to  marine  torts  committed  within  the 
State.     Sherlock  v.  Ailing,  93  U.  S.  99. 

A  State  law  prohibiting  the  floating  of  logs  in  a  navigable  river  without 
their  being  rafted  and  joined  together,  and  put  under  the  control  and  pilot- 
age of  men  specially  placed  in  charge  thereof,  is  valid.  Craig  v.  Kline,  65 
Penn.  399, 

A  State  law  requiring  railroad  corporations  to  fix  the  rates  for  the  trans- 
portation of  passengers  and  freight  at  a  certain  time  in  each  year,  and  make 
them  public  and  adhere  to  them,  is  a  police  regulation,  and  not  a  regulation 
of  commerce.  Railroad  Co.  v.  Fuller,  17  Wall.  560. 

Every  State  has  the  right  to  make  improvements  in  the  rivers,  water- 
courses, and  highways  within  its  limits.  Withers  v.  Buckley,  20  How.  84  ; 
S.  C.  29  Miss.  21 ;  Boykin  v.  Shaffer,  13  La.  Ann.  129. 

A  State  legislature  may  charter  a  company  to  navigate  the  waters  in 
any  State,  or  even  the  ocean  itself.  If  the  company  seek  the  protec- 
tion and  security  of  a  State  charter,  they  are,  bound  by  the  restrictions 
and  penalties  of  that  charter.  Such  restrictions  are  not  regulations  of  com- 
merce, but  limitations  on  the  power  of  the  corporation.  Camden  &  Amboy 
R.  R.  Co.  v.  Briggs,  22  N.  J.  623. 

A  State  may  pass  a  law  prohibiting  the  sale  of  any  article  deemed  detri- 
mental to  the  public  good,  although  it  may  have  been  introduced  from  a 
foreign  country  or  another  State.  Lincoln  v.  Smith,  27  Vt.  328  ;  Wyne- 
hamer  V.  People,  2  Parker  Cr.  C.  377  ;  S.  C.  20  Barb.  567  ;  13  N.  Y.  378; 
People  v.  Quant,  2  Parker  Cr.  C.  410  ;  Perdue  v.  Ellis,  18  Ga.  586;  Metro- 
politan Board  v.  Barrie,  34  N.  Y.  657 ;  Dorman  v.  State,  34  Ala.  216;  Rohr- 
backer  v.  Jackson,  51  Miss.  735;  contra,  People  v.  Toynbee,  20  Barb.  168; 
S.  C.  13  N.Y.  378. 

A  statute  prohibiting  the  sale  of  spirituous  liquors  within  certain  limits 
is  valid.  Dorman  v.  State,  34  Ala.  216  ;  Barnes  v.  State,  49  Ala.  342. 

The  power  of  the  State  to  determine  the  status  of  persons  in  its  territory 
may  be  exercised  as  well  in  relation  to  persons  iritransitu  as  in  relation  to  v 
those  remaining  in  the  State.     Lemmon  z/.  People,  26  Barb.  270;  S.  C.  20 
N.Y.  562;  2  Sandf.  681. 

A  statute  regulating  the  places  in  which  imported  articles  may  be  kept 


STATE    LEGISLATION.  39 

does  not  interfere  with  the  power  of  Congress  to  regulate  trade.     City  v. 
Ahrens,  4  Strobh.  241. 

A  statute  conferring  exclusive  privilege  of  navigating  the  interior  navi- 
gable rivers  of  the  State  is  void.  Gibbons  v.  Ogden,  9  Wheat,  i ;  s.  C.  17 
Johns.  488;  4  Johns.  Ch.  150. 

The  constitutionality  of  the  health  laws  and  quarantine  laws  of  the  sev- 
eral States  has  never  been  denied.  They  are  considered  as  flowing  from 
the  acknowledged  power  of  a  State  to  provide  for  the  health  of  its  citizens. 
Gibbons  v.  Qgden,  9  Wheat,  i ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  150;  Met- 
calf  v.  St.  Louis,  u  Mo.  102  ;  City  v.  McCoy,  18  Mo.  238  ;  Cityz/.  Boffinger, 
19  Mo.  13  ;  Peete  v.  Morgan,  19  Wall.  581. 

The  object  of  inspection  laws  is  to  improve  the  quality  of  articles  pro- 
duced by  the  labor  of  a  country,  to  fit  them  for  exportation,  or  it  may  be  for 
domestic  use.  They  act  upon  the  subject  before  it  becomes  an  article  of 
foreign  commerce,  or  of  commerce  among  the  States,  and  prepare  it  for  that 
purpose.  They  form  a  portion  of  that  immense  mass  of  legislation  which 
embraces  everything  within  the  territory  of  a  State  not  surrendered  to  the 
general  government,  all  of  which  can  be  most  advantageously  exercised  by 
the  States  themselves.  Gibbons  v.  Ogden,  9  Wheat,  i  ;  S.  C.  17  Johns.  488 ; 
4  Johns.  Ch.  1 50 ;  Charleston  v.  Rogers,  2  McC.  495  ;  Stokes  v.  New  York, 
14  Wend.  87  ;  Green  v.  State,  R.  M.  Charlt.^68.  « 

Quantity  as  well  as  quality  is  an  object  of  inspection.  Charleston  v. 
Rogers,  2  McC.  495. 

A  statute  requiring  the  measurement  of  coals  upon  sale  thereof  is  valid. 
Charleston  v.  Rogers,  2  McC.  495  ;  Stokes  v.  New  York,  14  Wend.  87. 

An  act  regulating  the  floating  of  timber  on  navigable  rivers  is  not  a 
regulation  of  commerce.  Scott  v.  Willson,  3  N.  H.  321. 

A  statute  regulating  the  speed  of  steamboats  on  a  navigable  river  in 
passing  the  wharves  of  a  city  is  valid.  It  is  a  police  regulation,  and  does 
not  conflict  with  any  regulation  of  commerce  by  the  general  government. 
People  v.  Jenkins,  i  Hill,  469 ;  People  v.  Roe,  i  Hill,  470. 

A  State  law  regulating  the  charges  for  the  storage  of  grain  in  ware- 
houses is  valid.  Munn  v.  Illinois,  94  U.  S.  113. 

Until  Congress  acts,  a  State  may  regulate  the  rates  to  be  charged  by  a 
railroad  corporation  for  the  transportation  of  freight  and  passengers,  al- 
though it  is  engaged  in  interstate  commerce.  Chicago,  B.  &  Q.  R.  R.  Co. 
v.  Iowa,  94  U.  S.  155  ;  Peck  v.  Chicago  &  N.  W.  R.  R.  Co.  94  U.  S.  164. 

A  State  law  regulating  the  navigation  of  vessels  has  no  operation  on 
commerce  carried  on  between  the  State  and  any  place  out  of  the  State. 
Haldeman  v.  Beckwith,  4  McLean,  286;  contra,  Fitch  'v.  Livingston,  4 
Sandf.  492. 


4O  CONSTITUTION    OF    THE 'UNITED    STATES. 

A  State  law  prohibiting  any  person  from  having  certain  game  birds  in 
his  possession  after  a  certain  time,  whether  killed  in  the  State  or  brought 
from  another  State,  is  valid,  whether  the  law  is  regarded  as  a  sanitary 
measure,  or  is  made  for  the  protection  of  food.  Phelps  v.  Racey,  60  N.  Y. 
10  ;  s.  C.  5  Daly,  235. 

A  State  statute  prohibiting  colored  seamen  from  coming  into  the  State 
on  board  of  any  vessel,  and  requiring  the  master  to  give  bond  to  transport 
them  out  of  the  State,  is  void.  A  State  can  not  thus  interfere  with  navi- 
gation, or  dictate  to  the  owners  of  an  American  vessel  the  composition  of 
her  crew.  The  Cynosure,  I  Sprague,  88 ;  Elkison  v.  Deliesseline,  2  Wh. 
Cr.  Cas.  56  ;  The  William  Jarvis,  i  Sprague,  485  ;  contra,  Roberts  v.  Gates, 
1 6  Law  Rep.  49. 

No  State  is  under  any  legal  obligation  to  give  to  other  States  the  facili- 
ties requisite  to  interstate  commerce.  The  only  obligation  of  a  State  in 
this  respect  is  to  allow  the  citizens  of  other  States  to  use,  equally  with  her 
own  citizens,  such  roads  or  highways  as  in  her  discretion  she  may  see  fit  to 
construct.  A  State  may,  therefore,  agree  not  to  permit  the  construction  of 
a  rival  railroad  for  a  certain  period.  Rar.  &  Del.  R.  R.  Co.  z/.  Del.  &  Rar. 
Canal  Co.  18  N.  J.  Eq.  546. 

A  State  law  regulating  commerce  can  not  be  made  valid  because  it  is 
contained  in  the  charter  of  a  corporation,  for  no  contract  respecting  a  reg- 
ulation of  commerce  can  make  it  constitutional.  State  v.  Del.  L.  &  W. 
R.  R.  Co.  30  N.  J.  473  ;  S.  C.  31  N.  J.  531. 

•  A  State  can  not  accomplish,  by  indirect  methods,  what  it  is  forbidden 
to  do  directly.     People  v.  Raymond,  34  Cal.  492. 

If  the  real  object  of  an  act,  as  manifested  in  its  provisions,  is  to  direct, 
regulate  or  control  commerce,  although  some  other  purpose  may  be  recited 
in  the  preamble  or  otherwise  expressed,  the  real  and  not  the  expressed  ob- 
ject must  determine  the  character  of  the  act.  Norris  v.  Boston,  45  Mass. 
282. 

A  statute  prohibiting  the  transportation  of  slaves  on  a  navigable  river 
over  which  the  State  has  jurisdiction,  without  the  consent  of  the  owner, 
does  not  interfere  with  the  rightful  power  of  the  Federal  Government  to 
regulate  commerce,  for  the  act  forbidden  is  in  its  nature  tortious.  Church 
v.  Chambers,  3  Dana,  274. 

A  State  law  prohibiting  any  vessel  from  leaving  a  port  in  the  State  with- 
out being  inspected,  for  the  purpose  of  protecting  the  slave  property  of  citi- 
zens of  the  State  is  valid.  Baker  v.  Wise,  16  Gratt.  139. 

A  statute  prohibiting  the  entrance  of  negroes  within  the  limits  of  a 
State,  is  not  a  regulation  of  commerce.  Pendleton  v.  State,  6  Ark.  509 ; 
Groves  v.  Slaughter,  1 5  Pet.  449.  Comm.  v.  Griffin,  3  B.  Mon.  208. 


PILOTS.  '      41 

A  State  law  which  requires  a  vessel  engaged  in  the  coasting  trade  to 
register  the  name  of  the  vessel,  the  names  of  the  owners  and  their  interest 
therein,  before  entering  the  interior  waters  of  the  State,  is  void.  Sinnot  i'. 
Davenport,  22  How.  227  ;  Foster  v.  Davenport,  22  How.  244 ;  contra, 
Commissioners  v.  Cuba,  28  Ala.  185. 

A  State  law  which  prohibits  any  person,  other  than  a  port  warden,  from 
making  a  survey  of  hatches  or  of  damaged  goods,  is  void.  Foster  z/.  Port 
Wardens,  92  U.  S.  246. 

In  the  absence  of  regulations  by  Congress,  a  State  has  a  right  to  pre- 
scribe at  what  wharf  a  vessel  may  lie,  and  how  long  she  may  remain  there, 
where  she  may  unload  and  take  on  particular  cargoes,  where  she  may  an- 
chor in  the  harbor,  and  for  what  time  and  what  description  of  light  she 
shall  display  at  night  to  warn  passing  vessels  of  her  position,  and  that  she 
is  at  anchor  and  not  under  sail.  Regulations  of  this  kind  are  necessary 
and  indispensable  in  every  commercial  port  for  the  convenience  and  safety 
of  commerce.  They  are  like  to  the  local  usages  of  navigation  in  different 
ports,  and  every  vessel  is  bound  to  take  notice  of  them  and  conform  to 
them.  Cushing  v.  The  James  Gray,  21  How.  184. 

A  State  may  establish  the  line  for  wharves  on  a  navigable  river,  and 
authorize  the  erection  of  wharves,  if  it  does  not  interfere  with  navigation. 
Savannah  z/.  State,  4  Geo.  26  ;  Comm.  v.  Alger,  61  Mass.  53 ;  Elbridge 
v.  Cowell,  4  Cal.  80 ;  Griffing  v.  Gibb,  I  Me  A.  212. 

Whether  the  erection  of  wharves  will  or  will  not  interfere  with  the  nav- 
igation of  the  river,  is  a  question  of  fact.  Savannah  v.  State,  4  Geo.  26. 

Pilots. 

The  mere  grant  to  Congress  of  the  power  to  regulate  commerce,  does 
not  deprive  the  State  of  the  power  to  regulate  pilots.  Cooley  v.  Philadel- 
phia, 12  How.  299;  Hyerz/.  Wave,  2  Paine,  131. 

The  acknowledged  power  of  a  State  to  regulate  its  police,  its  domestic 
trade,  and  to  govern  its  own  citizens,  may  enable  it  to  legislate  on  the  sub- 
ject of  pilots  to  a  considerable  extent.  Gibbons  v.  Ogden,  9  Wheat.  I ;  S.  C. 
17  Johns.  488  ;  4  Johns.  Ch.  150  ;  Chapman  -z/.  Miller,  2  Spears,  769;  Low 
*v.  Commissioners,  R.  M.  Charlt.  302  ;  Cooley  v.  Philadelphia,  12  How.  299. 

A  State  law  requiring  the  payment  of  half  pilotage  fees  in  case  of  a 
refusal  to  receive  a  pilot,  is  valid.  There  are  many  cases  in  which  an  offer 
to  perform,  accompanied  by  present  ability  to  perform,  is  deemed  by  law 
equivalent  to  performance.  The  laws  of  commercial  States  and  countries 
have  made  an  offer  of  pilotage  service  one  of  those  cases,  and  a  law  which 
does  this  is  not  so  far  removed  from  the  usual  and  fit  scope  of  laws  for  the 
regulation  of  pilots  and  pilotage,  as  to  be  deemed  a  covert  attempt  to  legis- 
late upon  another  subject  under  the  appearance  of  legislating  on  the  one. 


42       •       CONSTITUTION    OF    THE    UNITED    STATES. 

Cooley  T/.  Philadelphia,  1 2  How.  299 ;  Steamship  Co.  v.  Joliffe,  2  Wall.  450 ; 
Banta  v.  McNeil,  5  Ben.  74. 

A  State  law  that  imposes  a  penalty  upon  any  other  person  than  a  pilot 
who  pilots  or  tows  a  vessel  through  a  dangerous  channel,  is  valid.  People 
v.  Sperry,  50  Barb.  170. 

The  fair  objects  of  a  law  regulating  pilots  may  be  secured,  and  at  the 
same  time  some  classes  of  vessels  be  exempted  from  the  charge  of  half 
pilotage.  The  purpose  of  the  law  being  to  cause  masters  of  such  vessels 
as  generally  need  a  pilot,  to  employ  one,  and  to  secure  to  the  pilots  a  fair 
remuneration  for  cruising  in  search  of  vessels  or  waiting  for  employment 
in  port,  there  is  an  obvious  propriety  in  having  reference  to  the  number, 
size  and  nature  of  employment  of  vessels  frequenting  the  port.  The  leg- 
islative discretion  has  been  constantly  exercised  in  making  discriminations 
founded  on  differences  both  in  the  character  of  the  trade  and  the  tonnage 
of  vessels  engaged  therein.  Cooley  v.  Philadelphia,  12  How.  299. 

The  appropriation  of  the  sums  received  for  half  pilotage  fees,  to  the  use 
of  the  society  for  the  relief  of  distressed  and  decayed  pilots,  their  widows 
and  children,  has  no  legitimate  tendency  to  impress  on  the  act  the  charac- 
ter of  a  revenue  law.  Whether  the  sums  shall  go  directly  to  the  use  of 
the  individual  pilots  by  whom  the  service  is  tendered,  or  shall  form  a  com- 
mon fund  to  be  administered  by  trustees  for  the  benefit  of  such  pilots  and 
their  families  as  may  stand  in  peculiar  need  of  it,  is  a  matter  resting  in  leg- 
islative discretion  in  the  proper  exercise  of  which  the  pilots  alone  are 
interested.  Cooley  v.  Philadelphia,  12  How.  299. 

The  States  have  the  power  to  pass  pilotage  laws,  to  license  pilots,  to 
regulate  their  compensation,  and  to  enforce  these  laws  by  appropriate  pen- 
alties. They  may  discriminate  between  the  different  kinds  of  vessels,  ac- 
cording to  their  size  and  character,  requiring  heavier  fees,  and  putting 
more  severe  penalties  upon  some  than  others.  If  the  fees  are  not  an  im- 
post or  duty,  certainly  the  penalty  is  not.  It  is  a  substitute  for  the  fees 
that  ought  to  have  been  paid.  It  matters  not  what  the  reason  for  the  dis- 
crimination is,  for  it  is  in  the  discretion  of  the  Legislature.  Collins  v.  So- 
ciety, 30  Leg.  Int.  85. 

In  the  absence  of  legislation  by  Congress,  the  States  may  establish  a 
board  of  port  wardens  and  prescribe  their  duties.  Port  Wardens  v.  The 
Martha  J.  Ward,  14  La.  Ann.  289 ;  Port  Wardens  v.  The  Charles  Morgan, 
14  La.  Ann.  595 ;  Master  v.  Prats,  10  Rob.  459. 

State  Taxation. 

A  State  has  the  power  to  improve  navigable  rivers  within  its  territory, 
and  impose  a  toll  upon  merchandise  to  compensate  for  the  improvement, 
although  such  merchandise  passes  to  and  from  a  port  of  delivery.  It  may 
enact  laws  for  the  improvement  of  navigable  rivers  within  its  territories. 


STATE    TAXATION.  43 

Although  such  enactments  may  incidentally  affect  commerce,  yet  they  are 
not  a  regulation  of  commerce,  nor  are  they  adopted  in  virtue  of  any  sup- 
posed power  to  regulate  commerce.  They  are  mere  municipal  regulations. 
Kellogg  z/.  Union  Co.  12  Conn.  7  ;  Thames  Bank  v.  Lovell,  18  Conn.  500^ 
McReynolds  -v.  Smallhouse,  8  Bush,  447. 

The  constitutionality  or  unconstitutionality  of  a  State  tax  is  to  be  deter- 
mined not  by  the  form  or  agency  through  which  it  is  to  be  collected,  but 
by  the  subject  upon  which  the  burden  is  laid.  State  Freight  Tax,  15  Wall. 
232. 

A  State  tax  imposed  not  upon  the  carrier  but  upon  the  freight  carried, 
and  because  carried,  is  void  so  far  as  it  affects  commodities  transported 
through  the  State,  or  from  points  without  the  State  to  points  within  it,  or 
from  points  within  the  State  to  points  without  it.  State  Freight  Tax,  1 5 
Wall.  232;  contra,  Penn.  R.  R.  Co.  v.  Comm.  3  Grant,  128. 

The  owner  of  an  artificial  highway  may  exact  what  he  pleases  for  the 
use  of  the  way.  That  right  is  an  attribute  of  ownership.  Tolls  and 
freight  are  a  compensation  for  services  rendered  or  facilities  furnished  to 
a  passenger  or  transporter.  A  tax  is  a  demand  of  sovereignty ;  a  toll  is 
a  demand  of  proprietorship.  State  Freight  Tax,  1 5  Wall.  232. 

A  State  tax  upon  the  carriage  of  merchandise  from  State  to  State,  is  in 
conflict  with  the  Federal  Constitution.  Merchandise  is  the  subject  of 
of  commerce.  Transportation  is  essential  to  commerce,  and  every  burden 
laid  upon  it  is  pro  tanto  a  restriction.  No  State  can,  therefore,  impose  a 
tax  upon  freight  transported  from  State  to  State,  or  upon  the  transporter 
because  of  such  transportation.  State  Freight  Tax,  15  Wall.  232. 

A  State  can  not  tax  persons  for  passing  through  it  or  out  of  it.  Inter- 
state transportation  of  passengers  is  beyond  the  reach  of  a  State  Legis- 
lature. Crandall  v.  State,  6  Wall.  35  ;  s.  C.  i  Nev.  294. 

A  tax  upon  a  railroad  corporation  for  every  passenger  carried  by  it  is 
a  tax  on  the  passenger,  and  is  void.  State  v.  P.  W.  &  B.  R  R.  Co.  4 
Houst.  158. 

It  matters  not  whether  the  tax  is  in  terms  imposed  upon  the  passenger 
to  be  collected  by  the  carrier,  or  is  imposed  upon  the  carrier  with  power 
given  or  recognized  and  sanctioned  to  collect  it  out  of  the  passenger.  The 
difference  is  one  of  phraseology  merely,  not  varying  in  the  least  degree  its 
effect  upon  the  passenger.  State  v.  P.  W.  &  B.  R.  R.  Co.  4  Houst.  158. 

A  State  law  which  imposes  a  tax  upon  coal  transported  from  mines  in 
the  State  to  places  beyond  the  State  for  sale  is  void.  State  v.  Cumb.  £ 
,  Penn.  R.  R.  Co.  40  Md.  22. 

A  State  law  imposing  a  transit  duty  on  foreign  corporations  for  all 


44  CONSTITUTION    OF    THE    UNITED    STATES. 

goods  and  passengers  carried  or  transported  within  the  State  is  invalid. 
State  v.  Del.  L.  &  W.  R.  R.  Co.  30  N.  J.  473;  s.  C.  31  N.  J.  531. 

The  transportation  is  as  much  a  part  of  commerce  as  the  goods  them- 
selves. If  there  can  be  no  commerce  between  the  States  without  goods,  so 
there  can  be  none  without  the  transportation  of  the  goods.  The  two  must 
be  united  to  constitute  interstate  commerce.  A  tax  on  transportation  is  in 
legal  effect  a  tax  on  the  goods.  Whenever  the  taxation  of  a  commodity 
would  amount  to  a  regulation  of  commerce,  so  will  the  taxation  of  an  in- 
separable incident  or  a  necessary  concomitant  of  such  commodity.  Erie 
Co.  v.  State,  31  N.  J.  531 ;  s.  C.  30  N.  J.  473. 

A  State  law  imposing  a  tax  on  all  passenger  contracts  for  the  trans- 
portation of  passengers  beyond  the  limits  of  the  State  is  void,  although  the 
tax  is  to  be  paid  nominally  by  the  owner  of  the  vessel.  People  v.  Ray- 
mond, 34  Cal.  492. 

A  State  act  incorporating  a  railroad  corporation  may  provide  a  tax  for 
every  passenger  carried  across  the  State,  if  the  tax  is  paid  by  the  corpora- 
tion, and  is  not  to  be  added  to  the  ordinary  rate  of  fare.  Rar.  &  Del.  R. 
R.  Co.  v.  Del.  &  Rar.  Canal  Co.  18  N.  J.  Eq.  546. 

A  provision  in  the  charter  of  a  railroad  corporation  that  all  tonnage 
carried  on  the  road  shall  be  subject  to  a  certain  toll  or  duty  per  mile  is  not 
a  tax  on  commerce  or  on  the  goods,  but  is  simply  a  mode  of  taxing  the 
company  according  to  the  magnitude  of  its  business.  Penn.  R.  R.  Co.  v, 
Comm.  3  Grant,  128. 

If  a  State  builds  a  railroad  or  canal,  it  may  exact  any  amount  whatever 
of  toll  or  fare  or  freight,  or  authorize  its  citizens,  if  owners,  to  do  the  same. 
Railroad  Company  v.  Maryland,  21  Wall.  456;  S.  C.  34  Md.  344. 

A  State,  in  a  charter  of  a  railroad  corporation,  may  reserve  a  certain 
portion  of  the  earnings  as  a  bonus  for  the  grant  of  the  franchise.  Rail- 
road Company  V.  Maryland,  21  Wall.  456;  S.  C.  34  Md.  344. 

A  charter  to  a  corporation  is  usually  treated  as  a  contract,  and  is  not 
obnoxious  to  the  Constitution,  for  the  Constitution  forbids  only  laws  which 
involve  no  individual  consent  as  necessary  to  their  existence.  Penn.  R.  R. 
Co.  v.  Comm.  3  Grant,  128. 

It  is  not  material  that  the  tax  is  levied  upon  all  freight,  as  well  that 
which  is  wholly  internal  as  that  embarked  in  interstate  trade.  An  act  to 
tax  interstate  or  foreign  commerce  is  not  cured  by  including  in  its  pro- 
visions subjects  within  the  domain  of  the  State.  State  Freight  Tax,  1 5 
Wall.  232 ;  State  v.  Cumb.  &  Penn.  R.  R.  Co.  40  Md.  22. 

A  State  has  the  authority  to  tax  the  estate,  real  and  personal,  of  all  cor- 
porations, including  carrying  companies,  precisely  as  it  may  tax  similar 


STATE    TAXATION.  45 

property  when  belonging  to  natural  persons,  and  to  the  same  extent.  Such 
taxation  may  be  laid  upon  a  valuation,  or  may  be  an  excise,  and  in  exacting 
an  excise  from  corporations  a  State  is  not  obliged  to  impose  a  fixed  sum 
upon  the  franchises  or  the  value  of  them,  but  may  demand  a  graduated 
contribution,  proportioned  either  t®  the  value  of  the  privileges  granted,  or 
to  the  extent  of  their  exercise  or  the  results  of  such  exercise.  No  mode 
of  effecting  this,  and  no  forms  of  expression  which  have  not  a  meaning 
beyond  this,  can  be  regarded  as  violating  the  Constitution.  State  Tax  on 
Railway  Gross  Receipts,  15  Wall.  284;  Del.  Railroad  Tax,  1 8  Wall.  206. 

A  tax  upon  the  gross  receipts  of  a  railroad  corporation  is  valid,  for  it  is 
a  tax  upon  the  corporation  measured  in  amount  by  the  extent  of  its  busi- 
ness, or  the  degree  to  which  its  franchise  is  exercised.  State  Tax  on  Rail- 
way Gross  Receipts,  15  Wall.  284;  Del.  Railroad  Tax,  18  Wall.  206. 

A  tax  upon  the  gross  receipts  of  an  express  company  engaged  in  carry- 
ing articles  between  States,  is  valid.  Southern  Express  Co.  v.  Hood,  1 5 
Rich.  66;  Walcott  v.  People,  17  Mich.  68. 

A  State  tax  upon  a  money  or  exchange  broker  is  valid.  No  one  can 
claim  an  exemption  from  a  general  tax  on  his  business  within  the  State,  on 
the  ground  that  the  products  sold  may  be  used  in  commerce.  Nathan  v. 
Louisiana,  8  How.  73. 

A  Stajte  law  imposing  a  tax  upon  the  agents  of  foreign  insurance  com- 
panies doing  business  within  the  State  is  not  a  regulation  of  commerce. 
People  v.  Thurber,  13  111.  554. 

A  State  law  imposing  a  stamp  tax  on  foreign  bills  of  exchange  drawn 
in  the  State  is  valid.  Ex  parte  James  P.  Martin,  7  Nev.  140. 

A  State  may  impose  a  tax  upon  the  capital  of  a  corporation  created  by 
it,  although  the  corporation  is  created  for  the  purpose  of  towing  vessels 
and  carrying  freight  and  passengers.  Union  Tow  Boat  Co.  v.  Bordelon,  7 
La.  Ann.  192. 

A  State  may  impose  a  higher  tax  upon  a  foreign  corporation  than  it 
does  upon  corporations  created  by  its  own  laws.  Liverpool  Ins.  Co.  v. 
Massachusetts,  10  Wall.  566. 

A  State  tax  for  the  use  of  each  locomotive  and  car  in  the  State  where 
the  railroad  is  engaged  in  interstate  commerce  is  void.  Minot  v.  P.  W.  £ 
B.  R.  R.  Co.  2  Abb.  C.  C.  323  ;  S.  C.  18  Wall.  206 ;  7  Phila.  555. 

A  State  law  imposing  a  toll  upon  wood  and  lumber  floating  down  a 
river  in  the  course  of  transportation  to  another  State  is  void.  Carson  R. 
L.  Co.  v.  Patterson,  33  Cal.  334. 

A  State  law  requiring  every  express  company  or  railroad  company  doing 
business  in  the  State,  and  having  a  business  extending  beyond  the  limits  of 
the  State,  to  take  o*ut  a  license  is  valid,  for  it  is  a  tax  on  the  business  of 
making  contracts  within  the  State  for  transportation  beyond  it.  Osborne 


46  CONSTITUTION    OF    THE    UNITED    STATES. 

v.  Mobile,   1 6  Wall.  479;    S.  C.  44  Ala.  493;    Southern  Express  Co.  v. 
Mayor,  49  Ala.  404. 

A  State  tax  upon  vessels  owned  by  a  citizen  of  the  State,  ratably  with 
other  property  within  the  State,  is  valid.  Howell  v.  State,  3  Gill,  14;  State 
•z/.  Charleston,  4  Rich.  286. 

A  State  may  impose  a  tax  on  the  capital  or  stock  invested  by  its  citizens 
in  steamboats,  although  they  are  employed  in  commerce  between  the 
States.  Perry  v.  Torrence,  8  Ohio,  521  ;  People  v.  Commissioners,  48 
Barb.  157. 

A  State  tax  upon  the  officers  and  crew  of  a  vessel  of  the  United  States 
is  a  regulation  of  commerce,  and  unconstitutional.  People  «/.  Brooks,  4 
Denio,  469  ;  Passenger  Cases,  7  How.  283  ;  S.  C.  45  Mass.  282. 

A  State  has  no  jurisdiction  to  impose  a  tax  on  a  vessel  temporarily  en- 
tering its  ports  for  the  purposes  of  commerce,  if  the  home  port  is  in  an- 
other State.  Hays  v.  Pacific  Mail  Steamship  Co.  17  How.  596;  St.  Louis 
V.  Ferry  Co.  n  Wall.  423  ;  Morgan  v.  Parham,  16  Wall.  471. 

Sale  is  the  object  of  importation,  and  is  an  essential  ingredient  of  that 
intercourse  of  which  importation  constitutes  a  part.  It  is  as  essential  an 
ingredient,  as  indispensable  to  the  existence  of  the  entire  thing,  as  importa- 
tion itself.  It  must  be  considered  as  a  component  part  of  the  power  to 
regulate  commerce.  Congress  has  a  right  not  only  to  authorize  importa- 
tion, but  to  authorize  the  importer  to  sell.  Brown  v.  State,  12  Wheat.  419; 
vide  Biddle  z>.  Comm.  13  S.  &  R.  405. 

Any  penalty  inflicted  on  the  importer  for  selling  an  imported  article  in 
his  character  of  importer  is  in  opposition  to  the  act  of  Congress  which  au- 
thorizes importation.  Any  charge  on  the  introduction  and  incorporation  of 
the  articles  into  and  with  the  mass  of  property  in  the  country,  is  hostile  to 
the  power  given  to  Congress  to  regulate  commerce,  since  an  essential  part 
of  that  regulation  and  principal  object  of  it  is  to  prescribe  the  regular 
means  for  that  introduction  and  incorporation.  Brown  v.  State,  12  Wheat. 
419 ;  State  v  Shapleigh,  27  Mo.  344. 

The  line  which  separates  the  power  of  the  Federal  Government  to  reg- 
ulate commerce  among  the  States  from  the  authority  of  the  States  to  tax 
persons,  property,  business,  or  occupations  within  their  limits,  is  difficult 
to  define  with  distinctness.  A  tax  upon  imported  goods,  so  soon  as  the 
importer  has  broken  the  original  packages  and  made  the  first  sale,  obstructs 
importation  quite  as  much  as  an  equal  impost  upon  the  unbroken  packages 
before  they  have  gone  into  the  market.  State  Tax  on  Railway  Gross  Re- 
ceipts, 1 5  Wall.  284. 

The  power  which  insures  uniformity  of  commercial  regulation  must 
cover  the  property  which  is  transported  as  an  article* of  commerce  from 
hostile  or  interfering  legislation  until  it  has  mingled  with  and  become  a  part 


STATE    TAXATION.  47 

of  the  general  property  of  the  country,  and  subjected,  like  it,  to  similar  pro- 
tection, and  to  no  greater  burdens.  Welton  v.  State,  91  U.  S.  275 ;  s.  C. 
55  Mo.  288. 

The  commercial  power  continues  until  the  commodity  has  ceased  to  be        .1^ 
the  subject  of  discriminating  legislation.    That  power  protects  it,  even  after 
it  has  entered  the  State,  from  any  burdens  imposed  by  reason  of  its  foreign 
origin.     Welton  v.  State,  91  U.  S.  275;  s.  C.  55  Mo.  288. 

If  an  importer  intends  to  break  the  original  package  and  sell  the  liquor         ., 
therein  contained  in  violation  of  the  prohibitory  law  of  the  State,  the  pack- 
age  may  be  forfeited  under  the  State  law.     State  v.  Blackwell,  65  Me.  556. 

No  one  but  the  importer  himself  has  the  right  to  sell  except  as  allowed       j^ 
by  the  laws  of  the  State,  and  he  can  sell  only  in  the  original  packages. 
State  v.  Robinson,  49  Me.  285. 

The  products  of  other  States  which  are  brought  into  a  State  for  sale 
are  not  subject  to  State  taxation  until  a  change  in  the  ownership  or  condi- 
tion of  the  merchandise  takes  place,  so  that  it  becomes  incorporated  with 
and  forms  a  part  of  the  property  of  the  State.  State  v.  Kennedy,  19  La. 
Ann.  397. 

The  mere  conveyance  of  property  from  one  State  to  another  will  not 
exempt  it  from  taxation  and  general  regulation  by  the  laws  of  the  latter 
State.  License  Cases,  5  How.  504;  S.  C.  13  N.  H.  536;  State  v.  Pinckney, 
10  Rich.  474. 

A  State  may  levy  a  tax  on  capital,  although  it  is  continuously  invested 
in  cotton  purchased  for  exportation.  People  v.  Tax  Commissioner,  17  N. 
Y.  Supr.  255. 

A  tax  on  merchants  according  to  the  amount  of  their  capital,  with- 
out any  distinction  in  regard  to  the  articles  in  which  they  deal,  is  not 
a  tax  on  imports,  nor  does  it  interfere  with  the  power  of  Congress  to  regu- 
late commerce.  Raguet  v.  Wade,  4  Ohio,  107  ;  License  Cases,  5  How.  504; 
s.  C.  13  N.  H.  536;  Padelford  v.  Savannah,  14  Ga.  438;  Smith  v.  People, 
i  Parker  Cr.  Cas.  583. 

A  State  law  imposing  a  tax  upon  the  sale  of  articles  which  are  not  of 
the  growth,  product  or  manufacture  of  the  State,  is  void.  Welton  v.  State, 
91  U.  S.  275;  s.  C.  55  Mo.  288;  State  v.  North,  27  Mo.  464;  State  v.  Ken- 
nedy, 19  La.  Ann.  397  ;  State  v.  Browning,  62  Mo.  591  ;  Woodruff  v.  Par- 
ham,  8  Wall.  123;  S.  C.  14  Ala.  334;  Hinson  v.  Lott,  8  Wall.  148;  s.  C. 
40  Ala.  123;  Crow  v.  State,  14  Mo.  237  ;  contra,  Davis  v.  Dashiel,  Phillips, 
114;  Morrill  v.  State,  38  Wis.  428 ;  People  v.  Coleman,  4  Cal.  46;  Wynne 
v.  Wright,  4  Dev.  &  Bat.  19;  Biddle  v.  Comm.  13  S.  &  R.  405 ;  Cowles  v. 
Brittain,  2  Hawks,  204 ;  Cummings  v.  Savannah,  R.  M.  Charlt.  26 ;  Tracy 
v.  State,  3  Mo.  3. 


48  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  tax  upon  telegraph  companies,  which  is  graduated  to  the 
amount  of  their  business,  and  does  not  discriminate  in  favor  of  or  against 
any  company,  is  valid.  West.  U.  Tel.  Co.  v.  Richmond,  26  Gratt.  i. 

A  State  may  impose  a  tax  upon  the  sale  of  liquor  introduced  from  an- 
other State  when  a  tax  to  the  same  extent  is  imposed  upon  liquors  manu- 
factured in  the  State.  Hinson -v.  Lott,  40  Ala.  123;  s.  C.  8  Wall.  148. 

A  tax  on  business  which  does  not  discriminate  as  to  the  residence  or 
citizenship  of  the  person  engaged  in  the  business,  is  not  a  regulation  of 
commerce.  Speer  v.  Comm.  23  Gratt.  935. 

A  State  law  requiring  a  license  from  non-resident  traders  to  vend  for- 
eign merchandise  is  not  a  regulation  of  commerce.  Sears  v.  Commission- 
ers, 36  Ind.  267. 

A  State  law  requiring  hawkers  and  peddlers  to  take  out  a  license  is 
valid.  Comm.  v.  Ober,  66  Mass.  493. 

A  State  tax  upon  the  sale  of  articles  manufactured  in  the  State  is  valid. 
Downham  v.  Alexandria,  10  Wall.  173. 

A  State  statute  which  imposes  a  penalty  upon  those  who  sell  articles 
not  of  the  product  of  the  United  States,  does  not  interfere  with  the  power 
to  regulate  commerce.  Beall  v.  State,  4  Blackf.  107. 

A  State  law  imposing  a  penalty  upon  those  who  sell  articles  brought 
from  another  State,  and  allowing  a  fee  to  the  inspector  for^ais  services,  is 
valid.  State  v.  Fosdick,  21  La.  Ann.  256;  Board  v.  Pleasants,  23  La.  Ann. 
349- 

The  States  can  not  constitutionally  tax  the  commerce  of  the  United 
States  for  the  purpose  of  paying  any  expense  incident  to  the  execution  of 
their  police  laws.  Passenger  Cases,  7  How.  283  ;  s.  C.  45  Mass.  282. 

A  State  law  requiring  a  vessel  to  pay  a  fee  to  a  port  warden,  whether  he 
is  called  on  to  perform  any  service  or  not,  is  void.  Steamship  Co,  v.  Port 
Wardens,  6  Wall.  31. 

A  State  law  regulating  the  rates  of  wharfage,  owing  to  the  intimate  and 
necessary  connection  of  the  subject-matter  with  navigation,  may  be  a  reg- 
ulation of  commerce,  but  is  no£  invalid  in  the  absence  of  any  act  of  Con- 
gress, for  the  subject  is  not  such  as  to  require  it  to  be  considered  to  be 
within  the  exclusive  jurisdiction  of  the  national  government.  The  Ann 
Ryan,  7  Ben.  20;  Municipality  v.  Pease,  2  La.  Ann.  538. 

A  municipal  ordinance  imposing  a  charge  for  the  use  of  wharves  owned 
by  the  city,  is  valid.  Worseley  Municipality,  9  Rob.  324 ;  Municipality  v. 
Pease,  2  La.  Ann.  538. 

A  State  law  requiring  horses  and  cattle  to  be  landed  at  a  particular 


TRANSPORTATION    OF    PERSONS.  49 

locality,  and  compelling  the  owners  to  pay  for  the  facilities  afforded  in  the 
wharves  erected  there  is  valid.     State  v.  Pagan,  22  La.  Ann.  545. 

A'  State  tax  on  the  gross  receipts  of  a  telegraph  company  is  valid,  al- 
though they  accrued  from  messages  which  originated  or  terminated  at 
points  outside  of  the  State.  Western  Union  Tel.  Co.  v.  Mayer,  6  A.  L.  T. 
(N.  S.)  500. 

Transportation  of  Per§ons. 

A  State  statute  which  requires  the  master  or  owner  to  give  a  bond  for 
the  support  of  every  passenger  landed  in  the  United  States,  but  allows  a 
commutation  and  release  from  the  bond  upon  the  payment  of  a  small  sum,,  -f 
is  in  effect  a  tax  on  passengers,  and  is  void.     Henderson  v.  Mayor,  92  U.. 
S.  59- 

A  State  statute  allowing  a  commissioner  to  inspect  passengers,  and  deter- 
mine who  are  improper  to  land,  and  to  prohibit  their  landing,  unless  a  bond 
is  given,  and  allowing  a  commutation  for  the  bond,  is  void.  Chy  Lung  v*. 
Freeman,  92  U.  S.  275;  contra,  Commissioners  v.  Brandt,  26  La.  Ann.  29.. 

A  State  statute  imposing  a  tax  upon  passengers  coming  into  the  ports 
of  the  State,  is  a  regulation  of  commerce,  and  therefore  unconstitutional 
and  void.  Passenger  Cases,  7  How.  283 ;  S.  C.  45  Mass.  282  ;  People  v* 
Downer,  7  Cal.  169;  contra,  Smith  v.  Marston,  5  Tex.  426. 

The  right  to  exclude  immigrants  is  a  power  to  tax  them,  and  the  con- 
verse  of  the  proposition  is  also  true,  that  a  power  to  tax  is  a  power  to  ex- 
clude. Passenger  Cases,  7  How.  283;  s.  C.  45  Mass.  282. 

A  State  law  which  obstructs  the  entrance  into  the  State  of  persons  who 
are  neither  paupers,  vagabonds  nor  criminals,  nor  in  anywise  unsound  or 
infirm  in  body  or  in  mind,  is  not  an  exercise  of  the  police  power  of  the 
State,  and  is  void.  State  v.  Constitution,  42  Cal.  578. 

It  is  as  competent  and  as  necessary  for  a  State  to  provide  precautionary 
measures  against  the  moral  pestilence  of  paupers,  vagrants,  and  possibly 
convicts,  as  it  is  to  guard  against  physical  pestilence  which  may  arise  from 
unsound  and  infectious  articles  imported,  or  from  a  ship  the  crew  of  which 
may  be  laboring  under  an  infectious  disease.  Mayor  v.  Miln,  n  Pet.  102; 
s.  c.  2  Paine,  429;  New  York  v.  Staples,  6  Cow.  169. 

A  statute  of  a  State  requiring  the  captain  of  every  vessel  to  make  a  re- 
port concerning  the  passengers  brought  to  a  port  of  the  State  in  the  vessel 
is  not  a  regulation  of  commerce,  but  of  police.  Mayor  v.  Miln,  1 1  Pet.  102 ; 
Norris  v.  Bosttfn,  45  Mass.  282. 

The  police  power  of  the  State  may  be  exercised  by  precautionary  meas- 
ures against  the  increase  of  crime  or  pauperism,  or  the  spread  of  infectious 
diseases  from  persons  coming  from  other  countries.     The  State  may  en- 
tirely exclude  convicts,  lepers  and  persons  afflicted  with  incurable  disease, 
4 


5<3  CONSTITUTION    OF    THE    UNITED    STATES. 

j 

may  refuse  admission  to  paupers,  idiots  and  lunatics,  and  others  who  from 
physical  causes  are  likely  to  become  a  charge  upon  the  public,  until  secur- 
ity is  afforded  that  they  will  not  become  such  a  charge,  and  may  isolate 
the  temporarily  diseased  until  the  danger  of  contagion  is  gone.  Ex  parte 
Ah  Fong,  3  Saw.  144;  s.  C.  20  I.  R.  R.  112. 

Where  the  evil  apprehended  by  the  State  from  the  ingress  of  foreigners 
is  that  such  foreigners  will  disregard  the  laws  Of  the  State,  and  thus  be  in- 
jurious to  its  peace,  the  remedy  lies  in  the  more  vigorous  enforcement  of 
the  laws,  and  not  in  the  exclusion  of  the  parties.  Ex  parte  Ah  Fong,  3 
Saw.  144;  S.  C.  20  I.  R.  R.  112. 

The  extent  of  the  power  of  the  State  to  exclude  a  foreigner  from  its  ter- 
ritory is  limited  by  the  right  in  which  it  has  its  origin, — the  right  of  self- 
defense.  Whatever  outside  of  the  legitimate  exercise  of  this  right,  affects 
the  intercourse  of  foreigners  with  our  people,  their  immigration  to  this 
country  and  residence  therein  is  exclusively  with  the  general  government. 
Ex  parte  Ah  Fong,  3  Saw.  144;  S.  C.  20  I.  R.  R.  112. 

A  State  law  requiring  that  negroes  coming  into  the  State  shall  give  a 
bond  for  their  good  behaviour,  and  that  they  will  not  become  a  public 
charge,  is  not  a  regulation  of  commerce.  State  v  Cooper,  5  Blackf.  258  ; 
Baptiste  v.  State,  5  Blackf,  283. 

A  State  law  which  prohibits  common  carriers  from  discriminating 
against  passengers  on  account  of  race  or  color,  is  valid.  Decuir  v.  Benson, 
27  La.  Ann.  i. 

Commerce  can  not  be  carried  on  without  the  agency  of  persons,  and  a 
tax  the  effect  of  which  is  to  diminish  personal  intercourse  is  necessarily  a 
tax  on  commerce.  A  tax  on  an  alien  after  he  has  landed  as  a  condition  of 
residence  in  the  State,  is  void.  Lin  Sing  v.  Washburn,  20  Cal.  534. 

Aliens  can  not  be  taxed  for  the  privilege  of  residing  in  a  State,  without 
reference  to  their  condition  or  character.  They  may  be  taxed  as  other 
residents,  but  they  can  not  be  set  apart  as  special  subjects  of  taxation,  and 
compelled  to  contribute  to  the  revenue  of  the  State  in  their  character  of 
foreigners.  Lin  Sing  v.  Washburn,  20  Cal.  534. 

Every  State  may  tax  foreigners  within  its  territorial  limits,  with  the  ex- 
ception of  foreign  ambassadors,  and  agents  and  their  retinue.  People  v. 
Naglee,  I  Cal.  231. 

Bridge§. 

Congress  has  the  power  to  keep  navigable  waters  open  and  free  from 
any  obstruction  to  their  navigation  interposed  by  the  States  or  otherwise, 
to  remove  such  obstructions  when  they  exist,  and  to  provide  by  such  sanc- 
tions as  it  may  deem  proper,  against  the  occurrence  of  the  evil,  and  for  the 
punishment  of  offenders.  Oilman  v.  Philadelphia,  3  Wall.  713. 


BRIDGES.  51 

The  power  to  regulate  commerce  includes  the  power  to  determine  what 
shall  or  shall  not  be  deemed  in  judgment  of  law  an  obstruction  to  naviga- 
tion. A  bridge  authorized  by  an  act  of  Congress  will  not  be  deemed  an 
obstruction.  Miller  v.  New  York,  13  Blatch.  469;  State  v.  Wheeling 
Bridge  Co.  18  How.  421. 

Congress  may  legalize  a  bridge  erected  across  a  navigable  river  flowing 
between  two  States.  The  Clinton  Bridge,  10  Wall.  454 ;  s.  C.  I  Wool.  150; 
State  V.  Wheeling  Bridge  Co.  18  How.  421. 

Congress  has  the  power  to  prescribe  the  place  and  manner  of  construct- 
ing bridges  across  navigable  rivers.  U.  S.  v.  Mil.  &  St.  P.  R.  R.  Co.  5 
Biss.  410,  420. 

Congress  may  confer  on  a  chief  of  a  department  the  right  to  determine 
where  a  bridge  which  crosses  a  navigable  river,  shall  be  constructed.  U.  S. 
v.  Mil.  &  St.  P.  R.  R.  Co.  5  Biss.  410. 

Congress  may  interpose  whenever  it  shall  be  deemed  necessary  by  gen- 
'eral  or  special  laws.     It  may  regulate  all  bridges  over  navigable  waters,  re- 
move offending  bridges,  and  punish  those  who  shall  thereafter  erect  them. 
Gilman  v.  Philadelphia,  3  Wall.  713. 

Congress  can  not,  by  any  act  subsequent  to  the  erection  of  a  bridge,  so 
legislate  as  to  render  its  further  continuance  unlawful,  without  making 
proper  compensation  for  the  property  so  taken,  if  the  bridge  was  erected 
by  State  authority  in  the  absence  of  conflicting  legislation  by  Congress. 
Dover  v.  Portsmouth  Bridge,  17  N.  H.  200. 

Congress  can  not,  under  this  clause,  construct  a  bridge  over  a  navigable 
water.  This  belongs  to  the  local  or  State  authority  within  which  the  work 
is  to  be  done.  U.  S.  i>.  Railroad  Bridge  Co.  6  McLean,  517;  Dover  v. 
Portsmouth  Bridge,  17  N.  H.  200. 

The  several  States  had  the  power  to  build  bridges  before  the  Constitu- 
tion was  adopted,  and  have  it  still,  for  the  power  to  authorize  the  building 
of  bridges  is  not  to  be  found  in  the  Constitution.  Gilman  v.  Philadelphia, 
3  Wall.  713;  Silliman  v.  Hudson  River  Bridge  Co.  4  Blatch.  74,  395;  s.  C. 
2  Wall.  403. 

A  State  having  the  power  to  authorize  the  construction  of  a  bridge,  is, 
as  a  general  thing,  exclusively  to  judge  of  the  time,  place  and  circum- 
stances which  call  for  its  exercise.  Columbus  Ins.  Co.  v.  Peoria  Bridge 
Co.  6  McLean,  70. 

The  power  to  build  bridges  over  navigable  rivers  must  be  considered  so 
far  .surrendered  as  may  be  necessary  for  a  free  navigation  upon  those 
streams.  By  a  free  navigation  must  not  be  understood  a  navigation  free 
from  such  partial  obstacles  and  impediments  as  the  best  interests  of  society 
may  render  necessary.  People  v.  Railroad  Co.  15  Wend.  113. 


52  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  has  the  power  to  build  bridges  over  navigable  rivers  within  its 
territory,  where  they  shall  be  necessary  for  the  convenience  of  its  citizens. 
The  right  must  be  so  exercised  however  as  not  to  interfere  with  the  right 
to  regulate  and  control  the  navigation  of  navigable  streams.  Both  govern- 
ments have  rights  which  they  may  exercise  over  and  upon  navigable  waters, 
and  it  is  the  duty  of  both  so  to  exercise  their  several  portions  of  the  sove- 
reign power  that  the  greatest  good  may  result  to  the  citizens  at  large.  It 
is  the  right  and  duty  of  the  general  government  to  adopt  such  measures 
that  the  commerce  and  navigation  of  the  country  shall  not  be  improperly 
obstructed ;  and  it  is  the  duty  of  the  State  government  to  afford  its  citi- 
zens all  the  facilities  of  intercourse  which  are  consistent  with  the  interest 
of  the  community,  and  which  shall  not  obstruct  the  powers  granted  to  the 
general  government.  A  bridge  with  a  draw  which  shall  be  opened  free  of 
expense  for  every  vessel  sailing  under  a  license  as  a  coasting  vessel,  affords 
all  the  accommodations  necessary  for  citizens  in  the  vicinity  or  for  travelers, 
and  does  not  impede  the  navigation  in  any  essential  degree.  Silliman  v, 
Troy  &  W.  Troy  Bridge  Co.  1 1  Blatch.  274 ;  U.  S.  v.  Railroad  Bridge  Co. 
6  McLean,  517  ;  The  Passaic  Bridges,  3  Wall.  782 ;  People  v.  Railroad  Co. 
15  Wend.  113  ;  Comm.  v.  Breed,  21  Mass.  460;  Commissioners  v.  Pidge,  5 
Ind.  13  ;  Comm.  v.  Bedford  Bridge,  68  Mass.  339 ;  In  re  Water  Commis- 
sioners, 3  Edw.  Ch.  290  ;  Att.  Gen.  v.  Stevens,  Saxt.  369  ;  Hutchinson  v. 
Thompson,  9  Ohio,  52;  U.  S.  v.  Bedford  Bridge,  I  W.  &  M.  401  ;  Groten 
v.  Hurlburt,  22  Conn.  178;  Palmer  v.  Commissioners,  3  McLean,  226; 
Works  v.  Junction  Railroad,  5  McLean,  425  ;  Penn.  R.  R.  Co.  v.  N.  Y.  R. 
R.  Co.  18  I.  R.  R.  142  ;  Rogers  v.  Railroad  Co.  35  Me.  319;  Silliman  v. 
Hudson  River  Bridge  Co.  4  Blatch.  74,  395 ;  S.  C.  2  Wall.  403. 

A  State  may,  in  the  absence  of  legislation  by  Congress,  authorize  the 
erection  of  a  bridge  across  a  navigable  river  entirely  within  the  limits  of  the 
State,  although  navigation  is  thereby  obstructed.  Bridges  which  are  con- 
necting parts  of  turnpike  streets  and  railroads  are  means  of  commercial 
transportation  as  well  as  navigable  rivers,  and  the  commerce  which  passes 
over  a  bridge  may  be  much  greater  than  would  ever  be  transported  on  the 
water  it  obstructs.  It  is  for  the  municipal  power  to  weigh  the  considera- 
tions which  belong  to  the  subject,  and  to  decide  which  shall  be  preferred, 
and  how  far  either  shall  be  made  subservient  to  the  other.  Gilman  v.  Phil- 
adelphia, 3  Wall.  713;  The  Passaic  Bridges,  3  Wall.  782;  The  Albany 
Bridge  Case,  2  Wall.  463 ;  S.  C.  4  Blatch.  74,  395  ;  Easton  v.  N.  Y.  &  L.  B. 
R.  R.  Co.  9  Phila.  475  ;  Dover  v.  Portsmouth  Bridge,  17  N.  H.  200. 

If  Congress  has  regulated  navigation  upon  a  navigable  river  by  licensing 
vessels  and  establishing  ports  of  entry,  no  State  can  pass  a  law  authorizing 
the  erection  of  a  bridge  that  will  interfere  with  navigation  thereon.  No 
State  law  can  hinder  or  obstruct  the  free  use  of  a  license  granted  under  an 
act  of  Congress.  State  v.  Wheeling  Bridge  Co.  13  How.  518  ;  Columbus 
Ins.  Co.  v.  Curtenius,  6  McLean,  209 ;  Columbus  Ins.  Co.  v.  Peoria  Bridge 
Co.  6  McLean,  70;  Jolly  v.  Draw  Bridge  Co.  6  McLean,  237. 


BRIDGES. 


The  mere  existence  of  a  port  of  delivery  above  abridge.  aoes,jiot^render 
it  unlawful  if  the  bridge  does  not  prevent  access  to  the  port,  and  is  provided 
with  a  draw  and  an  arch  for  the  passage  of  vessels  and  boats.  Dover  v. 
Portsmouth  Bridge,  17  N.  H.  200. 

Congress  by  conferring  the  privileges  of  a  port  of  entry  on  a  town  or 
city,  does  not  thereby  prohibit  a  State  from  erecting  a  bridge  over  a  navi- 
gable river  below  the  port.  The  Passaic  Bridges,  3  Wall.  782. 

Every  bridge,  except  one  suspended  over  a  river  so  as  to  be  above  all 
vessels  and  water  craft,  may  in  one  sense  be  said  to  be  an  obstruction,  but 
that  delay  or  risk  which  is  inseparable  from  the  existence  which  the  State 
has  the  power  to  create,  does  not  make  it  an  obstruction  in  contemplation 
of  law.  The  necessity  is  the  justification,  and  for  such  delay  or  risk  the 
law  will  not  give  a  right  of  action.  Columbus  Ins.  Co.  v.  Peoria  Bridge  Co. 
6  McLean,  70;  Jolly  v.  Draw  Bridge  Co.  6  McLean,  237;  Dover  v.  Ports- 
mouth Bridge,  17  N.  H.  200. 

A  partial,  local,  or  slight  obstruction  which  operates  only  on  some  spe- 
cific spot,  does  not  per  se  conflict  with  the  power  of  Congress  to  regulate 
commerce.  Any  exercise  of  the  right  of  eminent  domain  which  does  not 
conflict  with  a  regulation  of  commerce  is  legitimate.  The  State  must 
grossly  abuse  her  right  by  an  essential  and  material  obstruction  of  a  com- 
munication which  it  is  the  duty  of  the  government  to  keep  open.  There 
may  be  many  obstructions  which  a  State  may  authorize,  but  if  they  are  not 
in  their  nature  essential  and  serious,  they  must  remain  so  long  as  the  au- 
thorities of  the  State  permit  them.  Griffing  v.  Gibb,  I  Me  A.  212. 

A  State  may  authorize  the  erection  of  a  close  bridge  over  a  navigable 
creek  which  is  not  used  as  a  great  public  highway.  Bailey  v.  Railroad  Co. 
4  Harring.  389. 

Whether  a  particular  bridge  is  an  essential  obstruction  of  navigation  is 
a  question  of  fact,  and  a  State  law  authorizing  its  erection  is  not  conclusive 
on  that  point.  Columbus  Ins.  Co.  V.  Curtenius,  6  McLean,  209 ;  Columbus 
Ins.  Co.  v.  Peoria  Bridge  Co.  6  McLean,  70 ;  Jolly  v.  Draw  Bridge  Co.  6 
McLean,  237. 

Whether  navigation  is  left  free  is  the  test  by  which  to  determine  whether 
a  bridge  is  a  material  obstruction.  No  precise  and  absolute  rule  can  be 
given  to  determine  whether  a  particular  bridge  is  an  obstruction.  It  must 
depend  upon  all  the  circumstances  of  each  particular  case,  the  character  of 
the  river,  the  trade  upon  it,  and  the  craft  navigating  it.  Columbus  Ins.  Co. 
v.  Peoria  Bridge  Co.  6  McLean,  70  ;  Jolly  v.  Draw  Bridge  Co.  6  McLean, 
237- 

A  State  legislature  may  bridge  a  navigable  river  upon  such  terms  and 
conditions  as  merely  impair  and  diminish  the  freedom  of  navigation  without 
destroying  the  right  altogether.  •  Flannagan  v.  Philadelphia,  42  Penn.  219. 


54  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  may  authorize  the  erection  of  a  bridge  over  a  navigable  river 
flowing  between  it  and  another  State.  Dover  v.  Portsmouth  Bridge,  17 
N.  H.  200. 

If  a  bridge  does  not  obstruct  navigation  at  the  time  when  it  is  erected, 
it  will  not  become  unlawful  by  a  subsequent  accident  whereby  it  is  rendered 
an  obstruction.  Commissioners  v.  Pidge,  5  Ind.  13. 

The  provision  for  the  payment  of  tolls  by  those  who  may  pass  over  a 
bridge  built  across  a  navigable  river  flowing  between  two  States,  may  per- 
haps, be  regarded  as  a  regulation  for  them,  but  is  not  in  such  an  application 
a  commercial  regulation.  Dover  v.  Portsmouth  Bridge,  17  N.  H.  200. 

The  regulation  of  the  tolls  of  bridges  and  turnpike  roads,  and  the  fares 
of  railroads  and  ferries,  is  in  no  just  sense  a  regulation  of  commerce.  State 
v.  Hudson,  24  N.  J.  718 ;  s.  C.  23  N.  J.  206. 


Dams. 

If  Congress  has  passed  no  law  to  control  State  legislation  over  small 
navigable  creeks,  into  which  the  tide  flows,  the  respective  States  may  au- 
thorize the  erection  of  dams,  and  otherwise  abridge  the  rights  of  those  who 
have  been  accustomed  to  use  them.  .  Such  acts  are  not  repugnant  to  the 
power  to  regulate  commerce  in  its  dormant  State.  Wilson  v.  Marsh  Co.  2 
Pet.  245  ;  Kellogg  v.  Union  Co.  12  Conn.  7  ;  Parker  v.  Mill  Dam  Co.  20 
Me.  353  ;  Glover  v.  Powell,  10  N.  J.  Eq.  211;  Woodman  v.  Kilbourn  Manuf. 
Co.  i  Abb.  C.  C.  158. 

A  State  may  authorize  the  erection  of  dams  and  locks  in  navigable  rivers 
if  navigation  is  not  seriously  obstructed  thereby.  Commissioners  v.  Pidge, 
5  Ind.  13  ;  Stoughton  v.  State,  5  Wis.  291. 

A  State  statute  imposing  a  penalty  for  erecting  a  dam  or  other  artificial 
obstruction  across  any  navigable  river  in  the  State  is  not  unconstitutional 
while  the  power  of  Congress  over  the  subject  lies  dormant.  Cox  v.  State, 
3  Blackf.  193. 

A  State  may  improve  the  navigation  of  any  and  all  streams  within  her 
borders,  and  authorize  the  erection  in  and  over  them  of  any  works  that  do 
not  substantially  injure  them  for  purposes  of  navigation.  Commissioners 
v.  Pidge,  5  Ind.  13. 

Ferrie§. 

Congress  has  no  authority  to  require  a  license  to  carry  on  a  ferry  over  a 
navigable  river  at  a  place  altogether  within  the  limits  of  a  State.  U.  S.  v. 
The  James  Morrison,  Newb.  241  ;  U.  S.  v.  The  William  Pope,  Newb.  256;, 
The  Thomas  Swan,  6  Ben.  42, 


FERRIES.  55 

The  States  bordering  on  a  navigable  river  which  flows  between  them 
possess  the  right  of  granting  and  controlling  the  privilege  of  ferrying  from 
their  respective  shores,  with  such  restrictions  as  to  competition  as  may  be 
deemed  necessary  to  secure  the  proper  accommodations  for  travel  and 
trade,  and  with  such  regulations  as  will  secure  a  speedy  and  comfortable 
passage  across  the  river,  and  protect  the  rights  and  property  of  their  citi- 
zens. Newport  v.  Taylor,  16  B.  Mon.  699;  State  v.  Hudson,  23  N.  J.  206  ; 
S.  C.  24  N.  J.  718  ;  Marshall  v.  Grimes,  41  Miss.  27  ;  Mills  v.  St.  Clair,  8 
How.  569 ;  S.  c.  2  Oilman,  197 ;  Conway  v.  Taylor,  i  Black,  603  ;  S.  C.  16 
B.  Mon.  699  ;  Fanning  v.  Gregoire,  16  How.  524;  Corporation  v.  Overton, 
3  Yerg.  387  ;  Phillips  v.  Bloomington,  I  Greene  (Iowa),  498. 

The  concurrent  action  of  both  States  is  not  necessary  in  order  to  estab- 
lish a  ferry  over  a  navigable  river  flowing  between  them,  for  the  ferry  is  in 
respect  of  the  landing  and  not  of  the  water.  Conway  v.  Taylor,  I  Black, 
603 ;  S.  C.  16  B.  Mon.  699. 

A  State  may  regulate  the  rates  of  ferriage,  although  the  ferry  is  between 
two  States  or  a  State  and  a  foreign  nation.  It  has  the  power  to  regulate 
the  exercise  of  the  right  of  ferry  by  any  person  holding  a  dock  or  wharf  in 
the  State,  although  the  passage  may  in  part  be  over  the  waters  of  an  adjoin- 
ing State.  The  jurisdiction  of  the  State  extends  to  the  center  of  the  stream, 
and  the  franchise  may  be  regulated  and  controled  to  that  extent,  upon  con- 
ditions which  may  affect  the  whole  transit.  State  v.  Hudson,  23  N.  J.  206 ; 
S.  c.  24  N.  J.  718;  Peoples.  Babcock,  11  Wend.  586;  Newport  z/.  Taylor, 
1 6  B.  Mon.  699. 

A  State  law  requiring  a  license  fee  from  ferry-boats  carrying  passen- 
gers between  the  State  and  a  foreign  nation,  is  valid.  Chilvers  v.  People, 
1 1  Mich.  43. 

A  ferry-boat  duly  licensed  under  the  laws  of  one  State  may  transport 
goods  or  passengers  across  a  navigable  river  flowing  between  two  States 
into  another  State,  but  can  not  carry  goods  or  passengers  from  the  latter 
State  in  violation  of  its  laws  granting  an  exclusive  ferry  privilege  to  others. 
Newport  v.  Taylor,  16  B.  Mon.  699  ;  S.  C.  I  Black,  603. 

A  steamboat  enrolled  and  licensed  under  the  laws  of  the  United  States, 
is  not  authorized  to  engage  in  transporting  goods  and  passengers  across 
a  navigable  river  flowing  between  two  States,  in  violation  of  the  laws  of  a 
State  granting  the  exclusive  ferry  privilege  to  others.  Newport  v.  Taylor, 
1 6  B.  Mon.  699;  S.  C.  i  Black,  603. 

The  owner  of  a  ferry  franchise  has  no  right  to  exclude  or  restrain  those 
who  prosecute  the  business  of  commerce  in  good  faith,  without  the  regu- 
larity or  purposes  of  ferry  trips,  and  seek  in  no\vise  to  interfere  with  the 
enjoyment  of  his  franchise.  Conway  v.  Taylor,  i  Black,  603;  S.  C.  16  B. 
Mon.  699. 


56  CONSTITUTION    OF    THE    UNITED    STATES. 


Subject  to  State  Law§. 

Persons  moving  upon  or  using  a  navigable  river  for  the  purposes  of 
trade  and  commerce,  out  of  their  own  State,  have  not  thereby  a  privilege 
to  commit  murders  or  robberies,  or  thefts  or  trespasses  upon  the  person  or 
property  of  others  upon  the  shores,  and  a  statute  punishing  such  offenses 
is  valid.  McFarland  v.  McKnight,  6  B.  Mon.  500;  Steerman  v.  State,  10 
Mo.  503. 

Vessels,  together  with  their  masters  and  crews,  while  within  the  juris- 
diction of  a  State,  are  subject  to  the  operation  of  its  laws  passed  with  a 
view  to  the  restraint  and  punishment  of  offenses  against  the  person  or  prop- 
erty of  its  citizens,  for  such  laws  are  police  laws.  Baker  v.  Wise,  16  Grat. 
139- 

The"  enrolment  and  license  of  a  vessel  confer  on  it  no  immunity  from 
the  valid  laws  of  a  State.  Baker  v.  Wise,  16  Grat.  139;  Smith  v.  State, 
1 8' How.  71. 


Internal  Commerce. 

Commerce  with  foreign  nations  signifies  commerce  which  in  some  sense 
is  necessarily  connected  with  those  nations — transactions  which  either  im- 
mediately or  at  some  stage  of  their  progress  must  be  extra  territorial.  The 
phrase  can  never  be  applied  to  transactions  wholly  internal  between  citi- 
zens of  the  same  community,  or  to  a  polity  and  law  whose  ends,  purposes 
and  operations  are  restricted  to  the  territory,  soil  and  jurisdiction  of  such 
community.  Veazie  v.  Moor,  14  How.  568;  S  C.  32  Me.  343. 

There  is  a  commerce  strictly  internal  to  each  State,  over  which  Congress 
has  no  control,  though  it  may  be  carried  on  by  means  of  the  navigable 
rivers  of  the  United  States.  The  Bright  Star,  Wool.  266. 

Commerce  among  the  States  means  commerce  among  the  people  of 
the  States,  and  this  commerce  is  internal  as  relates  to  the  Government 
of  the  United  States  and  its  citizens,  as  contradistinguished  from  foreign 
commerce.  Steamboat  Co.  v.  Livingston,  3  Cow.  713;  S.  C.  i  Hopk.  150. 

Comprehensive  as  the  word  "among"  is,  it  may  very  properly  be  re- 
stricted to  that  commerce  which  concerns  more  States  than  one.  The 
phrase  is  not  one  which  would  probably  have  been  selected  to  indicate  the 
completely  interior  traffic  of  a  State,  because  it  is  not  an  apt  phrase  for  that 
purpose,  and  the  enumeration  of  the  particular  classes  of  commerce  to 
which  the  power  was  to  be  extended,  would  not  have  been  made  had  the 
intention  been  to  extend  the  power  to  every  description.  The  enumeration 
presupposes  something  not  enumerated,  and  that  something  is  the  exclu- 
sively internal  commerce  of  a  State.  The  genius  and  character  of  the 


INTERNAL    COMMERCE.  57 

whole  Government  seem  to  be  that  its  action  is  to  be  applied  to  all  the  ex- 
ternal concerns  of  the  nation,  and  to  those  internal  concerns  which  affect 
the  State  generally,  but  not  to  those  which  are  completely  within  a  par- 
ticular State,  which  do  not  affect  other  States,  and  with  which  it  is  not 
necessary  to  interfere  for  the  purpose  of  executing  some  of  the  general 
powers  of  the  Government.  The  completely  internal  commerce  of  a  State, 
then,  may  be  considered  as  reserved  to  the  State  itself.  Gibbons  v.  Ogden, 
9  Wheat,  i ;  s.  C.  17  Johns.  488;  4  Johns.  Ch.  150;  Charleston  v.  Rogers, 
2  McC.  495 ;  Stokes  v.  New  York,  14  Wend.  87 ;  Moor  v.  Veazie,  31  Me. 
360;  s.  C.  32  Me.  343;  Morgan  v.  King,  18  Barb.  277;  Sinnot  v.  Daven- 
port, 22  How.  227.  <^~ 

The  navigation  of  a  public  navigable  river  is  not  included  in  internal 
commerce,  but  composes  a  part  of  the  coasting  trade,  and  is  subject  to 
the  regulation  and  control  of  Congress.  Steamboat  Co.  v.  Livingston,  3 
Cow.  713;  S.  C.  i  Hopk.  150. 

Congress  has  no  jurisdiction  over  the  navigable  waters  of  a  State,  ex- 
cept as  regards  intercourse  with  other  States  or  with  a  foreign  country.  A 
State  law  regulating  pilots  is  valid  so  far  as  commercial  intercourse  may  be 
carried  on  between  parts  of  the  State  by  the  citizens  thereof.  Barnaby  v. 
State,  21  Ind.  450. 

Congress  has  no  power  to  provide  for  a  license  and  inspection  of  a  ves- 
sel employed  in  navigation  between  ports  in  the  same  State.  U.  S.  v.  The 
Seneca,  10  A.  L.  Reg.  281 ;  The  Thomas  Swan,  6  Ben.  42. 

Congress  has  no  power  to  interfere  with  the  internal  trade  and  business 
of  the  separate  States,  except  as  a  necessary  and  proper  means  for  carry- 
ing into  execution  some  power  expressly  granted  or  vested.  U.  S.  v.  De- 
witt,  9  Wall.  41. 

A  statute  prohibiting  the  sale  of  a  certain  article  within  the  limit  of  the 
several  States,  is  void.  U.  S.  v.  Dewitt,  9  Wall.  41. 

No  regulation  can  be  made  by  Congress  of  commerce  among  the  States, 
but  such  as  shall  embrace  two  or  more  States.  Halderman  v.  Beckwith, 
4  McLean,  286. 

This  power  does  not  impair  the  right  of  the  State  governments  to  leg- 
islate upon  all  subjects  of  internal  police  within  their  territorial  limits, 
which  is  not  forbidden  by  the  Constitution,  even  though  such  legislation 
may  indirectly  and  remotely  affect  commerce,  provided  it  do  not  interfere 
with  the  regulations  of  Congress  upon  the  same  subject.  Such  are  inspec- 
tion, quarantine  and  health  laws  ;  laws  regulating  the  internal  commerce  of 
the  State  ;  laws  establishing  and  regulating  turnpike  roads,  ferries,  canals 
and  the  like.  Corfield  v.  Coryell,  4  Wash.  C.  C.  371 ;  Bennett  v.  Boggs, 
Bald.  60;  Jolly  v.  Draw  Bridge  Co.  6  McLean,  237. 


58  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  law  regulating  navigation  is  operative  on  commerce  that  is 
wholly  within  a  State.  Halderman  v.  Beckwith,  4  McLean,  286 ;  Fitch  V. 
Livingston,  4  Sandf.  492. 

The  grant  of  the  power  to  regulate  commerce  contains  no  cession, 
either  express  or  implied,  of  territoiy  or  of  public  or  private  property.  The 
jus  privatiim  which  a  State  has  in  the  soil  covered  by  its  waters,  is  totally 
distinct  from  ti\z  j us  publicum  with  which  it  is  clothed.  The  former,  such 
as  fisheries  of  all  descriptions,  remains  common  to  all  the  citizens  of  the 
State  to  which  it  belongs,  to  be  used  by  them  according  to  their  necessities 
or  according  to  the  laws  which  regulate  their  use.  A  law  of  the  State 
regulating  the  use  of  the  fisheries  and  oyster  beds  within  the  territorial 
limits  of  the  State,  does  not  interfere  with  the  power  of  Congress  to  regu- 
late commerce.  Corfield  v.  Coryell,  4  Wash.  C.  C.  371  ;  Bennett  v. 
Boggs.  Bald.  60;  Fuller  v.  Spear,  14  Me.  417;  Lunt  v.  Hunter,  16  Me.  9; 
Smith  v.  Levinus,  8  N.  Y.  472;  Smith  v.  State,  18  How.  71 ;  The  Martha 
Anne,  Ole,  18  ;  McCready  v.  Comm.  27  Grat.  985  ;  S.  C.  94  U.  S.  391  ;  Dun- 
ham v.  Lamphere,  69  Mass.  268. 

A  statute  which  merely  regulates  the  common  property  of  the  citizens  of 
the  State  by  forbidding  it  to  be  taken  at  improper  seasons,  or  with  destruc- 
tive instruments,  is  not  a  commercial  regulation,  for  it  does  not  inhibit  the 
buying  and  selling-  of  the  property  after  it  has  been  lawfully  gathered  and 
has  become  an  article  of  trade,  but  it  forbids  the  removal  unless  under  the 
regulation  which  the  law  prescribes.  Corfield  v.  Coryell,  4  Wash.  C.  C. 
371 ;  Bennett  v.  Boggs,  Bald.  60. 

The  shores  of  navigable  waters  and  the  soils  under-  them,  were  not 
granted  by  the  Constitution  to  the  United  States,  but  were  reserved  to  the 
States  respectively.  Pollard  v.  Hagan,  3  How.  212  ;  Guy  v.  Hermance,  5 
Cal.  73;  Seabury  v.  Field,  I  McA.  i  ;  Griffing  v.  Gibb,  I  Me  A.  212;  City 
v.  Menard,  23  Tex.  349. 

The  new  States  have  the  same  rights,  sovereignty  and  jurisdiction  over 
the  shores  of  navigable  waters  and  the  soil  under  them  as  the  original 
States.  Mumford  v.  Wardwell,  6  Wall.  423 ;  Weber  v.  Harbor  Commis- 
sioners, 1 8  Wall.  57  ;  Pollard  v.  Hagan,  3  How.  212 ;  Withers  v.  Buckley, 
20  How.  84;  S.  C.  29  Miss.  21 ;  Griffing  v.  Gibb,  I  McA.  212. 

Indians. 

The  Indian  tribes  in  this  clause  are  as  clearly  contradistinguished  by 
a  name  appropriate  to  themselves  from  foreign  nations  as  from  the  several 
States  composing  the  Union.  -  They  are  designated  by  a  distinct  appella- 
tion, and  as  this  appellation  can  be  applied  to  neither  of  the  others,  neither 
can  the  appellation  distinguishing  either  of  the  others  be  in  fair  construc- 
tion applied  to  them.  The  objects  to  which  the  power  of  regulating  com- 


INDIANS.  59 

merce  might  be  directed  are  divided  into  three  distinct  classes  :  foreign  na- 
tions, the  several  States,  and  Indian  tribes.  When  forming  the  article,  the 
convention  considered  them  as  entirely  distinct.  Cherokee  Nation  v.  State, 
5  Pet.  i. 

Commerce  with  the  Indian  tribes  means  commerce  with  the  individuals 
composing  those  tribes.  U.  S.  v.  Holliday,  3  Wall.  407. 

Commerce  can  not  without  a  palpable  perversion  of  the  term,  be  held 
applicable  to  ordinary  business  transactions  occurring  between  individuals. 
Hicks  v.  Euhartonah,  21  Ark.  106. 

Congress  has  the  power  to  regulate  commerce,  traffic,  or  intercourse 
with  an  Indian  tribe  or  with  a  member  of  such  tribe,  although  the  traffic 
is  within  the  limits  of  a  State.  The  locality  of  the  traffic  has  nothing  to  do 
with  the  power.  The  right  to  exercise  it  in  reference  to  any  Indian  tribe 
or  any  person  who  is  a  member  of  such  tribe,  is  absolute  without  reference 
to  the  locality  of  the  traffic  or  the  locality  of  the  tribe  or  of  the  member  of 
the  tribe  with  whom  it  is  carried  on.  U.  S.  v.  Holliday,  3  Wall.  407  ;  U. 
S.  v.  43  Gallons,  93  U.  S.  188;  Worcester  v.  State,  6  Pet.  515. 

Congress  has  the  power  to  forbid  the  introduction  of  spirituous  liquors 
into  a  place  near  an  Indian  reservation,  although  it  is  within  the  limits  of  a 
State.  U.  S.  v.  43  Gallons,  93  U.  S.  188. 

This  provision  does  not  apply  to  individual  sales,  or,  at  all  events,  not 
to  sales  of  county  lands  granted  to  individual  Indians  by  a  State,  but  is  con- 
fined to  lands  held  in  common  by  the  tribes.  Murray  v.  Wooden,  17 
Wend.  531. 

The  power  of  Congress  is  not  limited  to  the  regulation  of  commerce  be- 
tween the  Indian  tribes  and  white  people,  or  any  particular  people  or  per- 
sons, but  extends  to  commerce  with  such  tribes  or  any  member  thereof, 
however  carried  on.  Congress  may  regulate  commerce  between  different 
tribes  and  between  individual  Indians.  U.  S.  v.  Shawmux,  2  Saw.  304. 

As  the  power  to  regulate  commerce  with  the  Indian  tribes  is  given  to 
Congress  in  the  same  clause  of  the  Constitution  and  in  the  same  words  as 
the  power  to  regulate  commerce  with  foreign  nations,  it  may  be  exercised 
to  the  same  extent  in  one  case  as  in  the  other.  U.  S.  v.  Cisna,  I  McLean, 
254. 

The  Indian  tribes  referred  to  are  those  tribes  which  are  in  a  condition 
to  determine  for  themselves  with  whom  they  will  have  commerce,  or  in  a 
condition  to  have  Congress  determine  it  for  them,  and  not  those  small  tribes 
or  remnants  of  tribes  yet  denominated  tribes,  which  are  under  the  control 
and  guardianship  of  a  State,  and  are  without  power  to  carry  on  commerce 
or  trade  except  by  permission  and  under  regulation  of  State  laws.  Moor 
v.  Veazie,  32  Me.  343;  S.  C.  31  Me.  360. 


60  CONSTITUTION    OF    THE    UNITED    STATES. 

If  the  tribal  organization  is  preserved  intact,  and  recognized  by  the  po- 
litical department  of  the  Government  as  existing,  then  the  tribe  is  a  people 
distinct  from  others,  capable  of  making  treaties,  separated  from  the  jurisdic- 
tion of  the  State  in  which  it  is  located,  and  to  be  governed  exclusively  by 
the  Federal  Government.  The  Kansas  Indians,  5  Wall.  737 ;  U.  S.  v.  43 
Gallons,  93  U.  S.  188. 

The  courts  follow  the  action  of  the  executive  and  other  political  depart- 
ments of  the  Government,  and  if  Indians  are  recognized  as  a  tribe  by  them, 
the  courts  will  do  the  same.  U.  S.  v.  Holliday,  3  Wall.  407 ;  The  Kansas 
Indians,  5  Wall.  737. 

The  rights  of  a  tribe  as  against  State  laws  can  only  be  changed  by 
treaty  stipulation  or  a  voluntary  abandonment  of  their  tribal  organization. 
The  Kansas  Indians,  5  Wall.  737. 

The  Indian  tribes  residing  within  the  territorial  limits  of  the  United 
States  are  subject  to  its  authority ;  and  where  the  country  occupied  by  them 
is  not  within  the  limits  of  one  of  the  States,  Congress  may  by  law  punish 
any  offense  committed  there,  no  matter  whether  the  offender  be  a  white 
man  or  an  Indian.  U.  S.  v.  Rogers,  4  How.  567;  S.  C.  Hemp.  450;  U.  S. 
v.  Cha-to-kah-na-he-sha,  Hemp.  27. 

Congress  has  the  power  to  extend  its  laws  within  the  limits  of  municipal 
legislation  over  the  Indian  tribes  when  the  territory  occupied  by  them  is  not 
within  the  limits  of  a  State.  Cherokee  Tobacco,  1 1  Wall.  616  ;  S.  C.  i  Dill. 
264. 

When  the  Indian  territory  is  within  the  limits  of  a  State,  the  power  of 
Congress  is  limited  to  the  regulation  of  a  commercial  intercourse  with  such 
tribes  of  Indians  as  exist  as  a  distinct  community,  governed  by  their  own 
laws,  and  resting  for  their  protection  on  the  faith  of  treaties  and  laws  of 
the  Union.  Beyond  this  the  power  of  the  Federal  Government  in  any  of 
its  departments  can  not  be  extended.  U.  S.  v.  Bailey,  i  McLean,  234 ;  State 
v.  Foreman,  8  Yerg.  256  ;  U.S.  v.  Cisna,  i  McLean,  254. 

The  power  to  prohibit  any  intercourse  with  the  Indians,  except  under 
a  license,  is  within  the  power  to  regulate  commerce  with  them,  if  such  regu- 
lation could  not  be  effectual  short  of  an  intercourse  thus  restricted.  U.  S. 
v.  Cisna,  i  McLean,  254. 

Congress  can  not  effectually  regulate  commerce  with  the  Indian  tribes 
without  adopting  such  provisions  as  shall  effectually  preserve  them  from 
an  indiscriminate  commercial  intercourse  with  our  own  citizens.  Their 
inferiority  in  the  business  of  commerce  is  such,  while  in  an  uncivilized 
state,  that  their  interests  would  be  sacrificed  if  left  to  an  unrestricted  inter- 
course. U.  S.  v.  Cisna,  i  McLean,  254. 

Congress  has  no  power  to  enact  laws  invalidating  contracts  entered  into 


INDIANS.  6 1 

between  an  Indian  and  a  white  man  within  the  limits  of  a  State,.and  not  on 
any  Indian  reservation.  Hicks  v.  Euhartonah,  21  Ark.  106 ;  Taylor  v. 
Drew,  21  Ark.  485. 

When  the  power  to  punish  is  derived  exclusively  from  the  power  to 
regulate  commerce,  it  must  cease  as  soon  as  the  power  to  regulate  com- 
merce ceases.  U.  S.  v.  Cisna,  i  McLean,  254. 

Congress  has  no  power  to  pass  a  law  to  punish  a  crime  committed  by 
one  white  man  against  another  in  Indian  territory  within  the  limits  of  a 
State.  U.  S.  v.  Bailey,  I  McLean,  234  ;  U.  S.  v.  Ward,  I  Wool.  17 ;  Painter 
v.  Ives,  4  Neb.  122. 

The  Federal  courts  have  no  jurisdiction  of  a  crime  committed  by  an 
Indian  against  a  white  man  within  the  limits  of  a  State  and  outside  of  the 
reservation.  U.  S.  v.  Yellow  Sun,  i  Dillon,  271;  s.  C.  I  Abb.  C.  C.  377; 
3  A.  L.  T.  113. 

Congress  has  no  authority,  either  by  the  power  to  regulate  commerce 
or  the  power  to  make  treaties,  or  by  both  combined,  to  punish  the  commis- 
sion of  a  crime  on  an  Indian  reservation  within  the  limits  of  a  State.  State 
v.  Foreman,  8  Yerg.  256. 

The  legislation  of  Congress  upon  the  subject  of  crimes  committed  in 
the  Indian  country  is  in  its  nature  exclusive,  and  a  plea  of  acquittal  in  an 
Indian  court  under  the  Indian  laws  for  an  offense  punishable  under  the 
la\vs  of  the  United  States  is  bad.  U.  S.  v.  Ragsdale,  Hemp.  497. 

The  Federal  Government  has  the  exclusive  regulation  of  intercourse 
with  the  Indians,  and  so  long  as  this  power  shall  be  exercised  it  can  not 
be  obstructed  by  a  State.  It  is  one  of  the  powers  parted  with  by  the 
States  and  vested  in  the  Federal  Government.  Worcester  v.  State,  6  Pet. 
515. 

Notwithstanding  the  peculiar  relation  which  the  Indian  nations  hold  to 
the  Government  of  the  United  States,  the  States  have  the  power  of  a  sov- 
ereign over  their  persons  and  property,  so  far  as  it  is  necessary  to  preserve 
the  peace  and  protect  them  from  imposition  and  intrusion.  The  power  of 
a  State  to  make  such  regulations  to  preserve  the  peace  of  the  community 
is  absolute  and  has  never  been  surrendered.  A  State  law  for  the  protec- 
tion of  the  Indians  from  the  intrusion  of  the  white  people,  and  to  preserve 
the  peace,  is  not  contrary  to  the  Constitution.  New  York  v.  Dibble,  21 
How.  366;  S.  C.  16  N.  Y.  203;  18  Barb.  412. 

Neither  the  Constitution  of  a  State  nor  any  act  of  its  legislature,  how- 
ever formal  or  solemn,  whatever  rights  it  may  confer  upon  the  Indians  or 
withhold  from  them,  can  withdraw  them  from  the  influence  of  an  act  of 
Congress  which  that  body  has  the  constitutional  right  to  pass  concerning 
them.  U.  S.  v.  Holliday,  3  Wall.  407. 


I 

62  CONSTITUTION    OF    THE    UNITED    STATES. 

An  Indian  tribe  within  the  limits  of  a  State  constitutes  a  distinct  com- 
munity, occupying  its  own  territory  in  which  the  laws  of  the  State  can 
have  no  force,  and  which  the  citizens  of  the  State  have  no  right  to  enter, 
but  with  the  assent  of  the  tribe,  or  in  conformity  with  treaties  or  with  acts 
of  Congress.  Worcester  v.  State,  6  Pet.  515;  Blair  v.  Pathkiller,  2  Yerg. 
407. 

A  State  law  which  prohibits  a  white  person  from  residing  within  the 
territory  of  an  Indian  tribe,  unless  he  obtains  a  permit  from  the  governor 
and  takes  an  oath  to  support  the  State  Constitution,  is  void.  Worcester 
v.  State,  6  Pet.  515. 

The  lands  of  Indian  tribes  within  the  boundaries  of  a  State  are  within 
its  jurisdiction,  unless  there  is  an  express  treaty  that  such  lands  shall  not 
be  included  within  the  limits  or  jurisdiction  of  a  State.  McCracken  v. 
Todd,  i  Kans.  148. 

When  the  political  jurisdiction  of  the  tribe  has  been  extinguished,  either 
by  law  or  by  abandonment,  the  State  has  jurisdiction  over  the  land,  al- 
though it  is  owned  by  Indians  as  tenants  in  common.  Telford  v.  Barney, 
i  Greene  (Iowa),  575  ;  Webster  v.  Reid,  u  How.  437;  S.  C.  Morris,  467; 
Wright  v.  Marsh,  2  Greene  (Iowa),  94;  Barney  v.  Chittenden,  2  Greene 
(Iowa),  165. 

Except  by  compact,  or  the  voluntary  legislative  action  of  the  State, 
lands  within  its  limits  can  not  be  withdrawn  from  its  ordinary  action. 
Lowry  v.  Weaver,  4  McLean,  82. 

,  No  Indian  tribe  can  by  treaty  stipulate  away  any  part  of  the  sovereignty 
of  a  State  guaranteed  to  it  by  the  Federal  Government  on  its  admission 
into  the  Union.  U.  S.  v.  Lariviere,  19  I.  R.  R.  158. 

A  State  can  not  impose  a  tax  on  the  goods  of  a  trader  who  carries  on 
trade  within  the  limits  of  an  Indian  tribe  located  in  the  State.  Foster  v. 
Commissioners,  7  Minn.  140. 

If  the  tribal  organization  is  preserved,  a  State  can  not  levy  a  tax  upon 
the  lands  of  the  Indians  within  its  limits,  if  they  are  exempt  by  treaty, 
whether  they  are  held  in  severally  or  not.  Kansas  Indians,  5  Wall.  737 ; 
New  York  Indians,  5  Wall.  761 ;  s.  C.  23  N.  Y.  420  ;  She-mid-go-me-sia 
v.  State,  36  Ind.  310 ;  State  v.  Ross,  7  Yerg.  74:  Lowry  v.  Weaver,  4  Mc- 
Lean, 82. 

A  State  has  jurisdiction  to  punish  an  Indian  for  an  offense  against  an- 
other Indian  committed  within  the  limits  of  the  State,  and  not  on  an  Indian 
reservation.  Hunt  v.  State,  4  Kans.  60. 

So  far  as  the  administration  of  justice  to  persons  not  belonging  to  the 
Indian  nation  or  tribe  is  concerned,  a  reserve  forms  an  integral  part  of  the 


INDIANS.  63 

county  within  whose  boundaries  it  is  included,  and  the  State  may  punish  a 
white  man  for  a  crime  committed  against  another  white  person  on  the 
reserve.  Millars.  State,  2  Kans.  174;  U.  S.  v.  Ward,  I  Wool.  17. 

A  State  government  has  the  power  to  punish  its  own  citizens  for 
offenses  committed  within  its  limits  whether  within  an  Indian  territory  or 
not.  An  Indian  territory  within  a  State  can  not  be  considered  as  a  foreign 
jurisdiction.  The  State  may  exercise  such  jurisdiction  over  the  territory  as 
is  not  incompatible  with  the  constitutional  regulations  of  the  General 
Government.  U.  S.  v.  Cisna,  I  McLean,  254. 

A  State  may  pass  laws  to  punish  a  crime  committed  by  one  Indian 
against  another  Indian  on  an  Indian  reservation  within  the  limits  of  the 
State.  State  v.  Tassels,  I  Dudley,  229;  State  v.  Foreman,  8  Yerg.  256; 
U.  S.  v.  Ward,  I  Wool.  17;  State  v  Ta-cha-na-tah,  64  N.  C.  614;  Ex 
parte  George  Peters,  2  Johns.  Cas.  344. 

Indians  do  not  submit  themselves  to  all  the  laws  of  a  State,  because 
they  seek  its  courts  for  the  preservation  of  rights  and  redress  of  wrongs 
sometimes  voluntarily  and  sometimes  by  direction  of  the  Secretary  of  the 
Interior.  The  Kansas  Indians,  5  Wall.  737. 

An  .Indian  is  liable  to  be  sued  in  a  State  court.  Jones  v.  Eisler,  3  Kans. 
134;  Murch  v.  Tomeer,  21  Me.  535  ;  Rubideaux  v.  Vallie,  12  Kans.  28. 

An  Indian  may  maintain  an  action  in  a  State  court  to  enforce  his  right 
to  the  enjoyment  of  all  property,  real  or  personal.  Lobdell  v.  Hall,  3  Nev. 
507. 

An  Indian  tribe  can  not  institute  a  suit  at  law,  in  the  name  of  the  tribe, 
to  recover  a  reservation  held  by  them  in  common.  Strong  v.  Waterman, 
1 1  Paige,  607. 

Indians  may  file  a  bill  in  equity  on  behalf  of  themselves  and  the  residue 
of  the  nation  on  the  reservation,  to  restrain  a  trespass  upon  their  land. 
Strong  v.  Waterman,  1 1  Paige,  607. 

If  a  contingency  shall  occur  which  shall  render  the  Indians  who  shall 
reside  in  a  State  incapable  of  self  government,  either  by  moral  degradation 
or  a  reduction  of  their  numbers,  it  would  undoubtedly  be  in  the  power  of  a 
State  government  to  extend  to  them  the  aegis  of  its  laws.  Under  such  cir- 
cumstances the  agency  of  the  Federal  Government  must  of  necessity 
cease.  Worcester  v.  State,  6  Pet.  515. 

From  the  settlement  of  the  country,  the  Indians  have  been  uniformly 
treated  as  a  State,  a  distinct  political  society  separated  from  others,  capable 
of  managing  their  own  affairs  and  governing  themselves.  The  numerous 
treaties  made  with  them  by  the  United  States  recognize  them  as  a  people 
capable  of  maintaining  the  relations  of  peace  and  war,  of  being  responsible 


64  CONSTITUTION    OF    THE    UNITED    STATES. 

in  their  political  character  for  any  violation  of  their  engagements,  or  for 
any  aggression  committed  on  the  citizens  of  the  United  States,  by  any  indi- 
vidual of  their  community.  Cherokee  Nation  v.  Georgia,  5  Pet.  i. 

The  condition  of  the  Indians  in  relation  to  the  United  States,  is  per- 
haps  unlike  that  of  any  other  two  people  in  existence.  In  general,  nations, 
not  owing  a  common  allegiance  are  foreign  to  each  other.  The  term 
foreign  nation  is  with  strict  propriety,  applicable  by  each  to  the  other.  But 
the  relation  of  the  Indians  to  the  United  States,  is  marked  by  peculiar  and 
cardinal  distinctions  which  exist  nowhere  else.  The  Indian  territory  is 
admitted  to  compose  a  part  of  the  United  States.  In  all  maps,  geograph- 
ical treatises,  histories  and  laws,  it  is  so  considered.  In  all  intercourse 
with  foreign  nations,  in  commercial  regulations,  in  any  attempt  at  inter- 
course between  Indians  and  foreign  nations,  they  are  considered  as  within 
the  jurisdictional  limits  of  the  United  States.  They  are  not  a  State  of  the 
Union,  nor  can  they  with  strict  accuracy  be  denominated  foreign  nations. 
They  may  more  correctly  be  denominated  dependent  nations.  They 
occupy  a  territory  to  which  the  United  States  asserts  a  title  independent  of 
their  will,  which  must  take  effect  in  point  of  possession,  when  their  right 
of  possession  ceases.  Meanwhile,  they  are  in  a  state  of  pupilage.  Their 
relation  to  the  United  States,  resembles  that  of  a  ward  to  his  guardian. 
They  look  to  the  Government  for  protection,  rely  upon  its  kindness  and  its 
power,  and  appeal  to  it  for  relief  to  their  wants.  They  and  their  country 
are  considered  by  foreign  nations  as  being  so  completely  under  the  sover- 
eignty and  dominion  of  the  United  States,  that  any  attempt  to  acquire  their 
lands  or  to  form  a  political  connection  with  them,  would  be  considered  as 
an  invasion  of  its  teritory,  and  an  act  of  hostility.  Cherokee  Nation  v. 
Georgia,  5  Pet.  i. 

The  Indian  nations  have  always  been  considered  as  distinct  independ- 
ent political  communities,  retaining  their  original  natural  rights  as  the 
undisputed  possessors  of  the  soil  froni  time  immemorial,  with  the  single 
exception  of  that  imposed  by  irresistible  power,  which  excluded  them  from 
intercourse  with  any  other  European  potentate  than  the  first  discoverer  of 
the  coast  of  the  particular  region  claimed.  The  very  term  "nation"  so 
generally  applied  to  them,  means  "a  people  distinct  from  others."  The 
Constitution  admits  their  rank  among  those  powers  who  are  capable  of 
making  treaties.  At  no  time  has  the  sovereignty  of  the  country  been  rec- 
ognized as  existing  in  the  Indians,  but  they  have  been  always  admitted  to 
possess  many  of  the  attributes  of  sovereignty.  All  the  rights  which  belong 
to  self-government  have  been  recognized  as  vested  in  them.  Their  right 
of  occupancy  has  never  been  questioned,  but  the  fee  in  the  soil  has  been 
considered  in  the  government.  This  may  be  called  the  right  to  the  ulti- 
mate domain,  but  the  Indians  have  a  present  right  of  possession.  As  they 
have  the  right  of  self-government  they  in  some  sense  form  a  State.  In  the 
management  of  their  internal  concerns  they  are  dependent  on  no  power. 


INDIANS.  65 

They  punish  offenses  under  their  own  laws,  and  in  doing  so  they  are  re- 
sponsible to  no  earthly  tribunal.  They  make  war  and  form  treaties  of 
peace.  The  exercise  of  these  and  other  powers  gives  to  them  a  distinct 
character  as  a  people,  and  constitutes  them  in  some  respects  a  state. 
Their  engagements  with  the  United  States  do  not  divest  them  of  the  right 
of  self-government  nor  destroy  their  capacity  to  enter  into  treaties  or  com- 
pacts. Every  state  is  more  or  less  dependent  on  those  which  surround  it, 
but  unless  this  dependence  shall  extend  so  far  as  to  merge  the  political  ex- 
istence of  the  protected  people  into  that  of  their  protectors,  they  may  still 
constitute  a  state.  They  may  exercise  the  powers  not  relinquished  and 
bind  themselves  as  a  distinct  and  separate  community.  Worcester  v.  State, 
6  Pet.  515. 

Indians  on  a  reservation  within  the  limits  of  a  State,  are  not  citizens  or 
members  of  the  body  politic,  but  are  considered  as  dependent  tribes  and 
alien  communities  governed  by  their  own  usages  and  chiefs.  Goodell  v. 
Jackson,  20  Johns.  693;  Jackson  v.  Wood,  7  Johns.  290;  Strong  v.  Water- 
man, if  Paige,  607  ;  Holden  v.  Joy,  17  Wall.  211. 

The  laws  and  usages  of  a  conquered  nation  are  only  abrogated  or  su- 
perseded by  positive  enactments.  The  mere  acquisition  of  the  territory, 
whether  by  peace  or  war,  has  no  such  effect.  The  usages  and  customs  of 
an  Indian  tribe  continue  to  be  their  law,  although  the  tribe  is  on  a  reserva- 
tion within  the  limits  of  a  State.  Wall  v.  Williamson,  8  Ala.'  48 ;  s.  C.  1 1 
Ala.  826  ;  Goodell  v.  Jackson,  20  Johns.  693. 

Indian  tribes  may  have  laws  and  usages  for  their  own  internal  govern- 
ment, and  adopt  other  persons  as  members  of  their  tribes.  U.  S.  v.  Rags- 
dale,  Hemp.  497. 

The  Indian  nations  residing  within  the  limits  of  a  State,  have  a  right  to 
regulate  their  own  civil  policy,  and  their  laws  and  customs  regulating  prop- 
erty, contracts  and  the  relations  between  husband  and  wife  are  respected 
when  drawn  into  controversy  in  the  courts  of  the  State  and  of  the  United 
States.  Jones  v.  Laney,  2  Tex.  342 ;  Dole  v.  Irish,  2  Barb.  639  ;  Goodell 
v.  Jackson,  20  Johns.  693. 

The  private  property  of  the  Indians  on  a  reservation  within  the  limits 
of  a  State,  are  not  within  the  jurisdiction  of  State  laws  respecting  adminis- 
tration, and  no  letters  of  administration  can  be  granted  on  the  estate  of  an 
Indian.  Dole  v.  Irish,  2  Barb.  639;  U.  S.  v.  Shanks,  15  Minn.  369. 

If  an  Indian  dies  before  the  laws  of  the  State  are  extended  over  the  res- 
ervation, a  State  court  may  grant  letters  of  administration  on  his  estate 
when  they  are  so  extended,  as  the  debts  which  he  may  have  owed  can  not 
be  enforced  in  any  other  mode.  Brashear  v.  Williams,  10  Ala.  630. 

•    The  liability  of  an  innkeeper  who  keeps  an  inn  on  an  Indian  reservation 
5 


-66  CONSTITUTION    OF    THE    UNITED    STATES. 

within  the  limits  of  a  State  is  to  be  determined  according  to  the  laws  of  the 
tribe.     Holland  v.  Pack,  Peck,  1 5 1 . 

In  the  absence  of  proof  the  presumption  is  that,  in  a  savage  tribe, 
there  are  no  laws  regulating  the  descent  of  property,  and  that  being  in  a 
state  of  nature  the  property  of  the  deceased  belongs  to  the  first  occupant. 
Brashear  z>.  Williams,  10  Ala.  630. 

So  long  as  the  Indians  adhere  to  their  tribal  customs,  and  their  affairs 
•  are  managed  by  agents  of  the  Federal  Government,  they  are  not  subject 
to  State  laws  so  far  as  marriage  and  inheritance  are  concerned.     Boyer  z/. 
Dively,  58  Mo.  510;  Morgan  v.  McGhee,  5  Humph.  13;  Wall  v.  William- 
son, 1 1  Ala.  826 ;  S.  C.  8  Ala.  48. 

A  marriage  between  Indians,  which  is  valid  according  to  the  usages  of 
the  tribe,  will  be  deemed  valid  everywhere,  although  the  tribe  at  the  time 
was  on  a  reservation  within  the  limits  of  a  State.  Wall  v.  Williamson,  8 
Ala.  48;  S.  C.  n  Ala.  826;  Boyer  v.  Dively,  58  Mo.  510;  Morgan  v.  Mc- 
Ghee, 5  Humph.  13;  Johnson  v.  Johnson,  30  Mo.  72. 

If  a  marriage  between  Indians  is  dissolved  according  to  the  law  of  the 
tribe,  the  dissolution  will  be  deemed  valid  everywhere,  although  the  tribe 
at  the  time  was  on  a  reservation  within  the  limits  of  a  State.  Wall  v. 
Williamson,  8  Ala.  48 ;  S.  C.  1 1  Ala.  826. 

A  marriage  between  Indians  in  a  State  after  the  tribe  has  removed  from 
it,  must  conform  to  the  laws  of  the  State  in  order  to  be  valid.  Roche  V. 
Washington,  19  Ind.  53. 

The  condition  of  an  Indian  on  a  reserve  in  a  State,  in  reference  to 
his  contracts,  is  not  distinguishable  from  that  of  a  foreigner  sojourning  in 
the  State.  Murch  v.  Tomeer,  21  Me.  535. 

Indians  are  not  foreign  citizens  or  subjects.  Karrahoo  z>.  Adams,  I 
Dillon,  344. 

An  Indian  may  be  a  resident  alien  in  a  State.  Parent  v.  Walmsley, 
20  Ind.  82. 

If  an  Indian  leaves  his  tribe  or  nation  and  takes  up  his  abode  among 
the  white  population,  he  is  entitled  to  all  the  rights  and  privileges  which 
belong  to  an  emigrant  from  any  other  foreign  people.  Dred  Scott  v.  San- 
ford,  19  How.  393. 

The  Cherokee  territory  is  a  domestic  territory,  and  its  laws  and  pro- 
ceedings stand  on  the  same  footing  as  those  of  other  territories.  Mackey 
•v.  Coxe,  1 8  How.  100. 

A  white  man  may  incorporate  himself  with  an  Indian  tribe,  be  adopted 
by  it  and  become  a  member  of  the  tribe.  After  adoption  he  is  subject  to 
all  the  burdens,  and  entitled  to  all  the  immunities  of  native  born  citizens 
or  subjects.  U.  S.  v.  Ragsdale,  Hemp.  497. 


NATURALIZATION.  67 

Naturalization. 

(d)  The  power  of  naturalization  is  vested  exclusively  in  Congress.  Chi- 
rac v.  Chirac,  2  Wheat.  259  ;  U.  S.  v.  Villato,  2  Dall.  370 ;  Dred  Scott  v. 
Sanford,  19  How.  393;  Matthews  V.  Ray,  3  Cranch  C.  C.  699;  contra, 
Collet  v.  Collet,  2  Dall.  294. 

The  object  to  be  attained  by  the  exercise  of  the  power  of  naturaliza- 
tion is  to  make  citizens  of  the  respective  States.  Ex  parte  Frank 
Knowles,  5  Cal.  300. 

If  the  language  is  examined  closely  and  according  to  the  rules  of  rigid 
construction  always  applicable  to  delegated  powers,  it  will  be  found  that 
the  power  to  naturalize  in  fact  is  not  given  to  Congress,  but  simply  the 
power  to  establish  a  uniform  rule.  The  States  are  not  forbidden  to  natu- 
ralize, nor  is  there  anything  in  the  exercise  of  the  power  by  them  incon- 
gruous or  incompatible  with  the  power  of  Congress  to  establish  a  uniform 
rule.  That  the  States,  if  they  choose  to  exercise  the  power  as  an  original 
one,  must  abide  by  the  rule  which  Congress  makes,  there  can  not  be  the 
slightest  difference  of  opinion.  The  power  given  to  Congress  was  intended 
to  provide  a  rule  for  the  action  of  the  States,  and  not  a  rule  for  the  action 
of  the  Federal  Government.  Ex  parte  Frank  Knowles,  5  Cal.  300. 

The  power  granted  to  Congress  to  establish  an  uniform  system  of  nat- 
.uralization  is,  by  the  well  understood  meaning  of  the  word,  confined  to 
persons  born  in  a  foreign  country  under  a  foreign  government.  Dred 
Scott  v.  Sandford,  19  How.  393 ;  U.  S.  v.  Rhodes,  I  Abb.  C.  C.  281. 

Indians  may  be  naturalized  by  the  authority  of  Congress  like  the  sub- 
jects of  any  other  foreign  government,  and  become  citizens  of  a  State  and 
of  the  United  States.  Dred  Scott  v.  Sandford,  19  How.  393. 

Congress  has  the  power  to  admit  by  law  to  the  rights  of  American  cit- 
izenship, entire  classes  or  races  who  were  born  and  continue  to  reside 
within  the  United  States,  or  upon  soil  acquired  by  the  general  govern- 
ment. Races,  tribes  and  communities,  irrespective  of  color,  have  been 
admitted  in  mass  and  by  a  single  act  of  national  sovereignty  in  repeated 
instances.  People  v.  Washington,  36  Cal.  658. 

Congress  has  the  power  by  statute  to  confer  the  rights  of  citizenship 
upon  all  native  born  persons,  now  that  the  disability  of  slavery  has  been 
removed.  People  v.  Washington,  36  Cal.  658. 

Congress  having  power  to  make  a  uniform  rule  has  the  right  to  make 
the  exercise  of  it  a  judicial  power,  and  fix  upon  the  class  of  courts  which 
may  be  invested  with  the  jurisdiction.  This  it  can  do  as  a  part  of  the  rule, 
although  it  may  not  directly  confer  the  jurisdiction.  Ex  parte  Frank 
Knowles,  5  Cal.  300;  Ex  parte  Beavins,  33  N.  H.  89. 

Congress  has  the  power  to  impart  validity  to  an  act  which  it  may  au- 
thorize a  State  tribunal  to  perform,  although  it  may  assume  the  form  of  a 


68  CONSTITUTION    OF    THE    UNITED    STATES. 

judicial  act.  If  a  State  court  has  inherent  jurisdiction  .adequate  to  the 
performance  of  everything  required  to  be  done  in  the  process  of  natural- 
ization, Congress  may  empower  it  to  naturalize  aliens  and  give  validity  to 
the  act  when  done.  Morgan  v.  Dudley,  18  B.  Mon.  693  ;  Rump  v.  Comm. 
30  Penn.  475. 

If  a  State  law  gives  jurisdiction  to  the  courts  enumerated  in  the  act  of 
Congress,  they  may  entertain  proceedings  for  naturalization.  Ex  parte 
Frank  Knowles,  5  Cal.  300;  Rump  v.  Comm.  30  Penn.  475. 

The  Constitution  does  not  point  out  any  State  functionaries  or  any 
State  action  as  necessary  or  requisite  to  carry  this  power  into  effect.  No 
power  is  conferred  on  Congress  to  require  the  aid  of  the  States  in  its  exe- 
cution,  while  full  power  is  conferred  on  Congress  for  that  purpose.  The 
States  can  not,  therefore,  be  compelled  to  enforce  the  enactments  of  a 
uniform  system  of  naturalization.  Ex  parte  Beavins,  33  N.  H.  89. 

No  State  can  confer  the  jurisdiction  to  entertain  proceedings  for  natu- 
ralization on  any  tribunal  which  does  not  come  within  the  terms  of  the  act 
of  Congress.  State  V.  Whittemore,  50  N.  H.  245. 

A  State  may  prohibit  its  courts  from  entertaining  proceedings  for  natu- 
ralization. Ex  parte  Alexander  Stephens,  70  Mass.  559;  Ex  parte 
Beavins,  33  N.  H.  89. 

Previous  to  the  adoption  of  the  Constitution,  every  State  had  the  right 
to  confer  on  whomsoever  it  pleased  the  character  of  citizen,  and  endow 
him  with  all  its  right.  This  power  was  not  surrendered  by  the  adoption  of 
the  Constitution.  Each.  State  may  still  confer  the  rights  and  privileges  of 
a  citizen  upon  an  alien  or  any  one  it  thinks  proper,  or  upon  any  class  or 
description  of  persons.  No  State  however  can,  by  naturalizing  an  alien, 
invest  him  with  the  rights  and  privileges  secured  to  a  citizen  of  a  State 
under  the  Federal  Government,  although  so  far  as  the  State  alone  is  con- 
cerned he  would  be  entitled  to  the  rights  of  a  citizen,  and  clothed  with  all 
the  rights  and  immunities  which  the  Constitution  and  the  laws  of  the  State 
attach  to  that  character.  The  rights  which  he  would  acquire  would  be 
restricted  to  the  State  which  gave  them.  Dred  Scott  v.  Sandford,  19  How. 
393;  Ex  parte  Carl  Wehlitz,  16  Wis.  443;  Vaux  v.  Nesbit,  I  McCord 
Ch.  352. 

The  rights  of  citizenship  which  a  State  may  confer  within  its  own  limits 
must  not  be  confounded  with  the  rights  of  citizenship  as  a  member  of  the 
Union.  It  does  not  by  any  means  follow  because  a  person  has  all  the 
rights  and  privileges  of  a  citizen  of  a  State,  that  he  must  be  a  citizen  of  the 
United  States.  Dred  Scott  v.  Sandford,  19  How.  393. 

A  State  by  conferring  the  right  to  vote  on  aliens,  thereby  gives  them  an 
equal  voice  with  any  other  citizen  in  the  Government  of  the  United  States. 
Ex  parte  Carl  Wehlitz,  16  Wis.  443. 


BANKRUPTCY.  69 

No  State  can  make  the  subject  of  a  foreign  prince  a  citizen  of  the  State 
In  any  other  mode  than  that  provided  by  the  naturalization  laws  of  Con- 
gress. Lans  v.  Randall,  3  Cent.  L.  J.  688. 

No  State  can  superadd  to  the  naturalization  laws  of  Congress  any  req- 
uisitions before  an  alien  can  be  relieved  from  the  incapacities  of  alienage, 
and  acquire  the  privileges  and  immunities  of  citizens.  Comm.  v.  Towles, 
5  Leigh,  743. 

Bankruptcy. 

(e)  The  subject  is  divisible  in  its  nature  into  bankrupt  and  insolvent  laws, 
though  the  line  of  partition  between  them  is  not  so  distinctly  marked  as  to 
enable  any  person  to  say  with  positive  precision  what  belongs  exclusively 
to  one  and  not  to  the  other  class  of  laws.  The  difficulty  of  discriminating 
with  any  accuracy  between  insolvent  and  bankrupt  laws  would  lead  to  the 
opinion  that  a  bankrupt  law  may  contain  those  regulations  which  are  gen- 
erally found  in  insolvent  laws,  and  that  an  insolvent  law  may  contain  those 
which  are  common  to  a  bankrupt  law.  Sturges  v.  Crowninshield,  4  Wheat. 
122. 

The  word  bankruptcy  is  employed  in  the  Constitution  in  the  plural  and 
as  part  of  an  expression,  "the  subject  of  bankruptcies."  The  ideas  at- 
tached to  the  word  in  this  connection  are  numerous  and  complicated. 
They  form  a  subject  of  extensive  and  complicated  legislation.  Of  this  sub- 
ject Congress  has  general  jurisdiction.  In  re  Edward  Klein,  I  How.  277, 
note;  s.  C.  2  N.  Y.  Leg.  Obs.  185;  In  re  Silverman,  4  B.  R.  523;  s.  C.  I 
Saw.  410;  2  Abb.  C.  C.  243. 

Bankruptcy  bears  a  meaning  co-extensive  with  insolvency,  and  is  equiv- 
alent to  that  word  in  the  Constitution.  Kunzler  v.  Kohaus,  5  Hill,  317; 
Sackett  v.  Andross,  5  Hill,  327;  Morse  v.  Hovey,  I  Barb.  Ch.  404;  s.  C.  i 
Sandf.  Ch.  187. 

The  grant  is  a  grant  of  plenary  power  over  the  "subject  of  bankrupt- 
cies." The  subject  of  bankruptcies  includes  the  distribution  of  the  prop- 
erty of  the  fraudulent  or  insolvent  debtor  among  his  creditors,  and  the  dis- 
charge of  the  debtor  from  his  contracts  and  legal  liabilities,  as  well  as  all 
the  intermediate  and  incidental  matters  tending  to  the  accomplishment  or 
promotion  of  these  two  principal  ends.  Congress  is  given  full  power  over 
this  subject,  with  the  one  qualification,  that  its  laws  thereon  shall  be  uni- 
form throughout  the  United  States.  In  re  Silverman,  4  B.  R.  523 ;  s.  C. 
i  Saw.  410;  2  Abb.  C.  C.  243 ;  In  re  Reiman  &  Friedlander,  11  B.  R.  21  ; 
S.  C.  13  B.  R.  128 ;  7  Ben.  455  ;  12  Blatch.  562. 

The  power  of  Congress  extends  to  all  cases  where  the  law  causes  the 
property  of  a  debtor  to  be  distributed  among  his  creditors.  This  is  its 
least  limit.  Its  greatest  is  a  discharge  of  the 'debtor  from  his  contracts. 
All  intermediate  legislation  affecting  substance  and  form,  but  tending  to 


7O  CONSTITUTION    OF    THE    UNITED   .STATES. 

further  the  great  end  of  the  subject — distribution  and  discharge — is  in  the 
competency  and  discretion  of  Congress.  In  re  Edward  Klein,  i  How.  277, 
note;  S.  C.  2  N.  Y.  Leg.  Obs.  185:  In  re  Silverman,  4  B.  R.  523;  S.  C.  I 
Saw.  410;  2  Abb.  C.  C.  243. 

To  this  power  there  is  no  limitation,  and  consequently  it  is  competent 
for  Congress  to  act  on  the  whole  subject  of  bankruptcy  with  a  plenary  dis- 
cretion. In  re  Irwine,  I  Penn.  L.  J.  291. 

The  power  conferred  is  without  restriction,  save  in  its  uniformity.  It  is 
plenary,  and  in  reference  to  its  subject  may  be  exercised  with  the  same  lat- 
itude as  the  like  power  has  been  and  may  be  by  the  British  Parliament. 
Kunzler  v.  Kohaus.  5  Hill,  317;  In  re  Edward  Klein,  i  How.  277,  note; 
s.  C.  2  N.  Y.  Leg.  Obs.  185. 

Congress  in  passing  laws  on  the  subject  of  bankruptcies  is  not  restricted 
to  laws  with  such  scope  only  as  the  English  bankrupt  laws  had  when  the 
Constitution  was  adopted.  The  powder  is  general,  unlimited  and  unre- 
stricted over  the  subject.  In  re  Silverman,  4  B.  R.  523;  S.  C.  I  Saw.  410; 
2  Abb.  C.  C.  243;  In  re  Reiman  &  Friedlander,  11  B.  R.  21  ;  S.  C.  13  B. 
R.  128;  7  Ben.  455;  12  Blatch.  562;  Thompson  v.  Alger,  53  Mass.  428. 

The  framers  of  the  Constitution  did  not  intend  to  limit  the  power  to 
any  particular  class  of  persons.  Morse  v.  Hovey,  i  Sandf.  Ch.  187  ;  s.  C. 
i  Barb.  Ch.  404;  In  re  Edward  Klein',  i  How.  277,  note;  S.  C.  2  N.  Y.  Leg. 
Obs.  185;  Kunzler  v.  Kohaus,  5  Hill,  317;  In  re  California  Pacific  R.  R. 
Co.  ii  B.  R.  193  ;  In  re  Silverman,  4  B.  R.  523;  S.  C.  i  Saw.  410;  2  Abb. 
C.  C.  243. 

It  is  not  necessary  that  a  bankrupt  law  shall  provide  for  the  debtor's 
discharge.  In  re  California  Pacific  R.  R.  Co.  11  B.  R.  193. 

Congress  may  establish  a  system  of  voluntary  as  well  as  involuntary 
bankruptcy.  Loud  v.  Pierce,  25  Me.  233  ;  Lalor  v.  Wattles,  8  111.  225 ; 
Kunzler  v.  Kohaus,  5  Hill,  317;  In  re  Edward  Klein,  i  How.  277,  note; 
S.  C.  2  N.  Y.  Leg.  Obs.  185;  Morse  v.  Hovey,  i  Sandf.  Ch.  187;  S.  C.  i 
Barb.  Ch.  404  ;  Thompson  v.  Alger,  53  Mass.  428 ;  State  Bank  v.  Wilborn, 
6  Ark.  35  ;  Keene  v.  Mould,  16  Ohio,  12  ;  Cutter  v.  Folsom,  17  N.  H.  139; 
McCormick  v.  Pickering,  4  N.  Y.  276;  Rowan  v.  Holcomb,  16  Ohio,  463; 
Dresser  v.  Brooks,  3  Barb.  429 ;  Hastings  v.  Fowler,  2  Ind.  216  ;  Reed  v~ 
Vaughan,  15  Mo.  137;  In  re  Irwine,  i  Penn.  L.  J.  291. 

The  directly  granted  power  over  bankruptcies  carries  the  incidental  au- 
thority to  modify  the  obligation  of  contracts  so  far  as  the  modification  may 
result  from  a  legitimate  exercise  of  the  delegated  power.  A  discharge  may 
therefore  be  granted  releasing  the  debtor  from  contracts  subsisting  at  the 
time  when  the  law  was  passed.  Kunzler  v.  Kohaus,  5  Hill,  317  ;  Sackett 
v.  Andross,  5  Hill,  327 ;  In  re  Edward  Klein,  i  How.  277,  note  ;  S.  C.  2. 
N.  Y.  Leg.  Obs.  185;  Morses.  Hovey,  i  Sandf.  Ch.  187;  S.  C.  i  Barb.  Ch. 


BANKRUPTCY.  7 1 

404  ;  Loud  v.  Pierce,  25  Me.  233;  Keene  v.  Mould,  16  Ohio,  12;  McCormick 
v.  Pickering.  4  N.  Y.  276  ;  In  re  Irwine,  i  Penn.  L.  J.  291. 

Congress  may  pass  a  law  which  will  have  the  effect  to  make  void  an 
assignment  which  is  valid  under  the  State  laws.  In  re  Henry  Brenneman, 
Crabbe,  456. 

The  power  to  enact  a  bankrupt  law  implies  the  power  to  make  it  effi- 
cient. The  end  implies  the  means.  Russell  v.  Cheatham,  16  Miss.  703. 

Congress  has  the  power  not  only  to  establish  uniform  laws  on  the  sub- 
ject of  bankruptcies,  but  also  to  commit  the  execution  of  the  system  to 
such  Federal  courts  as  it  may  see  fit,  and  to  prescribe  such  modes  of  pro- 
"cedure  and  means  of  administering  the  system  as  it  may  deem  best  suited 
tov  carry  the  law  into  successful  operation.  Sherman  v.  Bingham,  5  B.  R. 
34;  S.  C.  7  B.  R.  490;  S.  C.  3  C.  L.  N.  258 ;  Goodall  v.  Tuttle,  7  B.  R. 
193  ;  S.  C.  3  Biss.  219;  Mitchell  v.  Manuf.  Co,  2  Story,  648. 

Congress  has  the  power  to  define  what  and  how  much  of  the  debtor's 
property  shall  be  exempt  from  the  claims  of  his  creditors.  In  re  Reiman 
&  Friedlander,  11  B.  R.  21 ;  S.  C.  13  B.  R.  128  ;  7  Ben.  455  ;  12  Blatch. 
562. 

To  come  within  the  constitutional  provision  a  bankrupt  law  must  be  a 
uniform  law  throughout  the  United  States.  A  law  which  prescribes  one 
rule  in  one  district  and  a  different  one  in  another  can  not  be  regarded  as  a 
uniform  law.  Kittredge  v.  Warren,  14  N.  H.  509. 

The  law  established  by  Congress  on  the  subject  of  bankruptcies  under 
the  power  conferred  by  the  Constitution  must,  indeed,  be  uniform  through- 
out the  United  States.  But  the  extent  to  which  this  power  shall  be  exer- 
cised rests  in  the  discretion  of  Congress.  Uniformity  is  required  in  the 
national  legislation  only,  and  the  laws  of  the  several  States  may  be  left  in 
force  so  long  and  to  such  extent  as  Congress  may  see  fit.  Day  v.  Bard- 
well,  3  B.  R.  455;  S.  C.  97  Mass.  246. 

The  system  of  bankruptcy  is,  in  a  relative  sense,  uniform  throughout 
the  United  States,  when  the  assignee  takes  in  each  State  whatever  would 
have  been  available  to  the  recourse  of  execution  creditors  if  the  bankrupt 
law  had  never  been  passed.  Though  the  States  vary  in  the  extent  of  their 
exemptions,  yet  what  remains  the  bankrupt  law  distributes  equally  among  the 
creditors.  The  bankrupt  act  does  not  in  any  way  vary  or  change  the  rights 
of  the  parties.  All  contracts  are  made  with  reference  to  existing  laws,  and 
no  creditor  could  recover  more  from  his  debtor  than  the  unexempted  part 
of  his  assets,  and  as  the  thing  is  attained  by  the  bankrupt  law,  it  is  uni- 
form. In  re  Beckerford,  4  B.  R.  203 ;  S.  C.  i  Dillon,  45;  i  L.  T.  B.  241 ; 
In  re  Jordan,  8  B.  R.  180  ;  In  re  Appold,  I  B.  R.  621 ;  S.  C.  i  L.  T.  B.  83; 
6  Phila.  469  ;  In  re  Ruth,  i  B.  R.  154 ;  S.  C.  7  A.  L.  Reg.  157 ;  In  re  Wylie, 


72  CONSTITUTION    OF    THE    UNITED    STATES. 

5  L.  T.  B.  330;  In  re  Daniel  Deckert,  10  B.  R.  i  ;  s.  c.  i  A.  L.  T.  (N.  S.) 
336;  9  A.  L  J.  390;  6  C.  L.  N.  310. 

A  bankrupt  law,  to  be  constitutional,  must  be  uniform,  and  whatever 
rule  it  prescribes  for  one,  it  must  for  all.  If  it  provides  that  certain  kinds 
of  property  shall  not  be  assets  under  the  law  in  one  place,  it  must  make 
the  same  provision  for  every  other  place  within  which  it  is  to  have  effect. 
The  provision  that  in  each  State  property  specified  in  the  laws  thereof, 
whether  actually  exempted  by  virtue  thereof  or  not,  shall  be  exempted,  is 
unconstitutional  and  void.  In  re  Daniel  Deckert,  10  B.  R.  i ;  s.  C.  i  A. 
L.  T.  (N.  S.)  336:  9  A.  L.  J.  390;  6  C.  L.  N.  310;  In  re  Kerr  &  Roach, 
9  B.  R.  566 ;  In  re  Geo.  W.  Dillard,  9  B.  R.  8 ;  s.  C.  6  L.  T.  B.  490  ;  In  re 
Geo.  T.  Duerson,  13  B.  R.  183  ;  In  re  Shipman,  14  B.  R.  570;  Bush  v.  • 
Lester,  55  Geo.  579;  contra,  In  re  Kean  et  al.  8  B.  R.  367 ;  In  re  John  W. 
Smith,  8  B.  R.  401 ;  s.  C.  6  C.  L.  N.  33 ;  In  re  Willis  A.  Jordan,  10  B.  £. 
427  ;  In  re  John  W.  A.  Smith,  14  B.  R.  295. 

The  uniformity  required  is  as  to  the  general  policy  and  operation  of  the 
law.  The  bankrupt  act  in  some  minor  particulars  must  necessarily  operate 
differently  in  the  different  States.  Thus,  the  bankrupt  law  regards  as  valid 
the  legal  and  equitable  liens  existing  by  law  in  the  several  States,  and  as 
the  nature,  force  and  effect  of  such  liens  are  dependent  upon  the  local 
laws,  they  will  in  some  respects  be  different  in  the  different  States.  In  re 
Jordan,  8  B.  R.  180. 

Stale  I ii M»! veil t.  L,aw§. 

The  power  granted  to  Congress  may  be  exercised  or  declined  as  the 
wisdom  of  that  body  shall  decide.  If,  in  the  opinion  of  Congress,  uniform 
laws  concerning  bankruptcies  ought  not  to  be  established,  it  does  not  fol- 
low that  partial  laws  may  not  exist,  or  that  State  legislation  on  the  subject 
must  cease.  It  is  not  the  mere  existence  of  the  power,  but  its  exercise, 
which  is  incompatible  with  the  exercise  of  the  same  power  by  the  States. 
It  is  not  the  right  to  establish  these  uniform  laws,  but  their  actual  estab- 
lishment which  is  inconsistent  with  the  partial  acts  of  the  States.  Sturges 
v.  Crowninshield,  4  Wheat.  122;  Blanchard  v.  Russell,  13  Mass,  i  ;  Farm- 
er's Bank  v.  Smith,  3  S.  &  R.  63 ;  Betts  v.  Bagley,  29  Mass.  572  ;  Adams 
v.  Storey,  I  Paine,  79  ;  Pugh  v.  Bussel,  2  Blackf .  294  ;  Alexander  v.  Gib- 
son, i  N.  &  McC.  480;  contra,  Vanuxem  v.  Hazelhursts,  4  N.  J.  192;  Old- 
ens v.  Hallet,  5  N.  J.  466 ;  Golden  v.  Prince,  3  Wash.  313;  Mason  v.  Nash, 
i  Breese,  16  ;  Ballantine  v.  Haight,  16  N.  J.  196. 

One  prominent  reason  why  the  power  was  given  to  Congress,  was  to 
secure  to  the  people  of  the  United  States  as  one  people,  a  uniform  law  by 
which  a  debtor  might  be  discharged  from  his  previous  engagements,  and 
his  future  acquisitions  exempted  from  his  previous  engagements.  The 
rights  of  debtor  and  creditor  equally  entered  into  the  minds  of  the  framers 


STATE    INSOLVENT    LAWS.  73 

of  the  Constitution.  The  great  object  was  to  deprive  the  States  of  the 
dangerous  power  to  abolish  debts.  In  re  Edward  Klein,  I  How.  277,  note ; 
s.  c.  2  N.  T.  Leg.  Obs.  185. 

The  peculiar  terms  of  the  grant  deserve  notice.  Congress  is  not  au- 
thorized merely  to  pass  laws  the  operation  of  which  shall  be  uniform,  but 
to  establish  uniform  laws  on  the  subject  throughout  the  United  States. 
This  establishment  of  uniformity  is  perhaps  incompatible  with  State  legis- 
lation on  that  part  of  the  subject  to  which  the  acts  of  Congress  may  ex- 
tend. Sturges  v.  Crowninshield,  4  Wheat.  122. 

The  right  of  the  States  to  pass  a  bankrupt  law  is  not  extinguished  but 
merely  suspended  by  the  enactment  of  a  general  bankrupt  law.  The  re- 
peal of  that  law  can  not  confer  the  power  on  the  States,  but  it  removes  a 
disability  to  its  exercise,  which  was  created  by  the  act  of  Congress. 
Sturges  -v.  Crowninshield,  4  Wheat.  122. 

The  bankrupt  act,  as  soon  as  it  took  effect  ipso  facto,  suspended  all 
action  upon  future  cases  arising  under  the  insolvent  laws  of  the  State, 
where  the  insolvent  laws  act  upon  the  same  subject-matter  and  the  same 
persons  as  the  bankrupt  act ;  and  all  proceedings  upon  such  cases  com- 
menced under  the  State  laws  after  that  time  are  null  and  void.  Common- 
wealth v.  O'Hara,  I  B.  R.  86  ;  S.  C.  7  A.  L.  Reg.  765  ;  6  Phila.  402  ;  Perry 
-v.  Langley,  I  B.  R.  559;  s.  C.  I  L.  T.  B.  34  ;  7  A.  L.  Reg.  429;  Van 
Nostrand  v.  Carr,  2  B.  R.  485  ;  S.  q.  30  Md.  128;  Martin  v.  Berry,  2  B. 
R.  629;  s.  C.  37  Cal.  208  ;  2  L.  T.  B.  180;  Corner  v.  Miller  et  al.i  B.  R. 
403;  Shears  v.  Solhinger,  10  Abb.  Pr.  (N.  S.)  287  ;  in  re  Reynolds,  9  B.  R. 
50 ;  S.  C.  8  R.  I.  485  ;  in  re  Lucius  Eames,  2  Story,  322  ;  Bishop  v. 
Loewen,  2  Penn.  L.  J.  364;  Griswold  v.  Pratt,  49  Mass.  16;  Rowe  v. 
Page,  13  B.  R.  366 ;  S.  C.  54  N.  H.  190. 

The  State  insolvent  laws  are  not  entirely  abrogated.  They  exist  and 
operate  with  full  vigor  until  the  bankrupt  law  attaches  upon  the  person  and 
property  of  the  debtor.  In  re  John  Zeigenfuss,  2  Ired.  463  ;  Reed  v.  Tay- 
lor, 4  B.  R.  710;  s.  c.  32  Iowa,  209. 

Two  statutes  having  the  same  general  object,  and  acting  upon  the 
same  persons  and  the  same  cases,  by  different  modes  and  in  different  juris- 
dictions, must  be  in  conflict  with  each  other.  Though  the  modes  by  which 
the  remedy  is  administered  may  vary,  yet,  where  the  bankrupt  act  and  the 
State  insolvent  law  have  substantially  the  same  scope  and  object,  and  act 
upon  the  same  persons  and  cases,  the  State  insolvent  law  is  suspended. 
The  act  of  Congress  is  both  a  bankrupt  act  and  an  insolvent  act.  Martin 
v.  Berry,  2  B.  R.  629 ;  s.  C.  37  Cal.  208;  2  L.  T.  B.  180  ;  Van  Nostrand 
v.  Carr,  2  B.  R.  485  ;  S.  C.  30  Md.  128. 

The  jurisdiction  of  the  bankrupt  act  does  not  depend  upon  the  right  of 
the  debtor  to  ultimately  obtain  a  discharge.  If  his  case  comes  within  the 


74  CONSTITUTION    OF    THE    UNITED    STATES. 

provisions  of  the  bankrupt  act,  he  can  not  obtain  a  discharge  under  the 
State  insolvent  law,  even  though  his  assets  are  not  sufficient  to  pay  thirty 
per  centum  on  the  claims  that  may  be  proved  against  his  estate.  Van 
Nostrand  v.  Carr,  2  B.  R.  485;  s.  C.  30  Md.  128. 

If  a  State  court  has  acquired  jurisdiction,  under  a  State  law,  of  a  case 
in  insolvency,  and  is  engaged  in  settling  the  debts  and  distributing  the 
assets  of  the  insolvent  before  or  at  the  date  at  which  the  act  of  Congress 
upon  the  same  subject  takes  effect,  the  State  court  may,  nevertheless, 
proceed  with  the  case  to  its  final  conclusion,  and  its  action  in  the  matter 
will  be  as  valid  as  if  no  law  upon  the  subject  had  been  passed  by  Con- 
gress. Martin  v.  Berry,  2  B.  R.  629;  S.  C.  37  Cal.  208  ;  2  L.  T.  B.  180; 
Meekins,  Kelly  &  Co.  v.  Creditors,  3  B.  R.  511 ;  S.  C.  19  La.  Ann.  497  ; 
In  re  Eli  Horton,  5  Law  Rep.  462 ;  In  re  Bela  Judd,  5  Law  Rep.  328  ; 
West  v.  Creditors,  5  Rob.  (La.)  261;  S.  C.  8  Rob.  (La.)  123;  Dwight  v* 
Simon,  4  La.  Ann.  490 ;  Larrabee  v.  Talbot,  5  Gill,  426  ;  Lavender  v.  Gos- 
nell,  12  B  R.  282;  s.  C.  43  Md.  153;  Longis  v.  Creditors,  20  La.  Ann.  15. 

If  the  debtor  was  divested  of  his  property  under  the  State  insolvent 
law  at  the  time  of  the  adoption  of  the  bankrupt  law,  the  jurisdiction  of  the 
State  court  is  not  affected  thereby.  Judd  v.  Ives,  45  Mass.  401. 

All  proceedings  on  a  petition  to  compel  an  insolvent  debtor  to  surren- 
der his  property,  which  are  pending  at  the  time  when  the  proceedings  in 
bankruptcy  were  commenced,  should  be  stayed  until  an  assignee  is  ap- 
pointed. West  v.  Creditors,  4  Rob.  (La.)  88;  S.  C.  8  Rob.  (La.)  123. 

The  jurisdiction  of  the  State  court  attaches  from  the  moment  when  it 
makes  the  order  staying  the  creditors  from  all  interference  with  the  prop- 
erty of  the  debtor.  From  that  time  the  State  court  has  the  legal  custody 
and  control  of  his  estate.  Martin  v.  Berry,  2  B.  R.  629 ;  S.  C.  37  Cal.  208  ; 
2  L.  T.  B.  1 80;  Meekins,  Kelly  &  Co.  v.  Creditors,  3  B.  R.  511 ;  S.  €.19 
La.  Ann.  497. 

A  suit  to  compel  a  new  surrender  is  a  new  suit,  and  not  a  continuation 
of  the  suit  in  insolvency  previously  pending.  The  suspension  of  the  State 
insolvent  law  by  the  enactment  of  the  bankrupt  law  before  the  surrender 
was  ordered,  divested  the  State  court  •  of  its  jurisdiction  over  cases  previ- 
ously instituted,  and  no  further  proceedings  can  be  had  therein.  Fisk  v, 
Montgomery,  21  La.  Ann.  446. 

The  State  laws  relating  to  insolvent  corporations  were  superseded. 
The  State  courts  have  jurisdiction  as  far  as  the  forfeiture  of  the  charter  of 
a  corporation  for  insolvency  is  concerned  ;  but  with  the  decree  of  forfeiture 
their  jurisdiction  ends.  They  can  not  go  on  and  administer  upon  the 
property  of  a  corporation  as  the  property  of  an  insolvent  corporation,  for 
the  insolvent  laws  of  a  State  touching  corporations  are  no  longer  in  force. 
Thornhill  et  al.  v.  Bank  of  Louisiana  et  al.  3  B.  R.  435  ;  S.  C.  5  B.  R.  367  ; 


STATE    INSOLVENT    LAWS.  75 

i  Woods,  i ;   i  L.  T.  B.  1 56 ;  3  L.  T.  B.  38 ;    In  re  Merchants'  Ins.  Co.  6 
B.  R.  43  ;  S.  C.  3  Biss.  162  ;  2  L.  T.  B.  243. 

The  treatment  which  a  corporation  may  receive  at  the  hands  of  the 
State  court  can  not  avail  to  sustain  that  court's  control  over  the  assets.  If 
the  fact  of  insolvency  exists,  and  the  corporation  is  within  the  provisions 
of  the  bankrupt  law,  the  Federal  courts  sitting  in  bankruptcy  have  exclusive 
jurisdiction  of  the  property,  and  the  fact  that  a  State  law  does  not  purport 
or  attempt  to  relieve  the  debtor  from  his  debts  can  not  be  urged  as  a  reason 
why  the  State  court  should  hold  the  assets  and  administer  them  after 
proper  proceedings  in  bankruptcy  have  been  instituted  in  the  Federal 
courts.  So  far  as  a  State  law  attempts  to  administer  on  the  effects  of  an 
insolvent  debtor,  and  distribute  them  among  creditors,  it  is,  to  all  intents 
and  purposes,  an  insolvent  law,  although  it  may  not  authorize  the  discharge 
of  the  debtor  from  further  liability.  If  the  fact  of  insolvency  does  not  exist, 
the  State  court  may  probably  have  the  right  to  administer  the  assets  as  an 
incident  to  a  proceeding  for  the  dissolution  of  the  corporation,  but  when 
insolvency  intervenes  so  as  to  make  the  debtor  a  proper  subject  for  the  op- 
eration of  the  bankrupt  law,  the  exclusive  jurisdiction  of  the  bankrupt  court 
attaches,  and  the  State  court,  and  those  acting  under  its  mandates,  must 
surrender  the  control  of  the  assets,  whatever  may  be  the  final  decree  in  re- 
gard to  the  continuance  of  the  corporation.  In  re  Merchants'  Ins.  Co.  6 
B.  R.  43;  S.  C.  3  Biss.  162;  2  L.  T.  B.  243  ;  Thornhill  et  al.  v.  Bank  of 
Louisiana  et  al.  3  B.  R,  435;  s.  C.  5  B.  R.  36?;  i  Woods,  i  ;  i  L.  T.  B.. 
156;  3  L.  T.  B.  38  ;  in  re  Independent  Ins.  Co.  6  B.  R.  169,  260 ;  s.  C.  i 
Holmes,  103;  2  Lowell,  97;  Platt  v.  Archer,  6  B.  R.  465  ;  S.  C.  9  Blatch. 
559;  Shryock  z/.  Bashore,  13  B.  R.  481. 

A  proceeding  in  bankruptcy  is  not  the  exclusive  method  of  winding  up 
insolvent  corporations.  The  bankrupt  act  does  not  ipso  facto  suspend 
State  laws  for  the  collection  of  debts.  Chandler  v.  Siddle,  10  B.  R.  236  ; 
S.  C.  3  Dillon,  477. 

A  State  law  to  abolish  imprisonment  on  civil  process  in  certain  cases, 
which  is  limited  to  the  single  instance  of  involuntary  confinement,  and 
whose  aim  and  purpose  is  simply  to  liberate  the  person,  is  not  superseded. 
Steelman  v.  Mattix,  36  N.  J.  344;  Shears  v.  Solhinger,  10  Abb.  Pr.  (N.  S.) 
287  ;  in  re  Reynolds,  9  B.  R.  50  ;  S.  C.  8  R.  I.  485  ;  Jordan  v.  Hall,  9  R.  I. 
218  ;  in  re  Rank,  Crabbe,  493. 

If  the  distribution  of  the  property  is  merely  incidental  to  the  release  of 
the  person  from  imprisonment,  and  the  debt  is  not  •  discharged,  the  pro- 
ceeding is  not  a  proceeding  in  bankruptcy.  Steelman  v.  Mattix,  36  N.  J. 
344- 

The  bankrupt  act  can  not  affect  the  determination  of  a  debtor's  right 
to  be  discharged  by  taking  the  poor  debtor's  oath,  and  of  his  liability  to 
imprisonment  by  way  of  punishment  for  fraud,  upon  proceedings  which 


76  "CONSTITUTION    OF    THE    UNITED    STATES. 

were  commenced  before  the  act  took  effect.     Stockwell  v.  Silloway,  100 
Mass.  287. 

In  an  action  on  a  bond  given  on  the  arrest  of  the  debtor,  and  condi- 
tioned that  he  will  apply  for  the  benefit  of  the  State  insolvent  laws,  a  plea 
that  he  has  since  obtained  a  discharge  under  the  bankrupt  law  is  a  valid 
plea,  unless  the  debt  is  one  that  is  not  released  by  a  discharge.  Hubert  v. 
Horter,  14  B.  R.  430;  S.  C.  81  Penn.  39;  Barber  v.  Rogers,  71  Penn.  362  ; 
Nesbit  77.  Greaves,  6  W.  &  S.  120. 

A  bond  to  apply  for  the  benefit  of  the  State  insolvent  laws,  and  if  he 
fails  to  be  discharged  to  surrender  himself  to  the  sheriff,  is  valid.  The 
undertaking  is  in  the  alternative,  either  to  obtain  a  discharge  or  to  return 
to  the  condition  from  which  he  was  released.  If  he  can  not  apply  for  the 
benefit  of  the  State  insolvent  laws  because  they  are  suspended,  he  'must 
perform  the  other  alternative  of  the  condition.  Steelman  v.  Mattix,  36  N. 
J-  344- 

A  State  insolvent  law  which  merely  protects  the  person  from  imprison- 
ment, without  affecting  contracts,  is  not  superseded,  although  it  also  pro- 
vides for  the  distribution  of  the  debtor's  property.  Sullivan  v.  Hieskill, 
-Crabbe,  525  ;  S.  C.  4  Penn.  L.  J.  171. 

A  State  law  providing  for  the  arrest  and  punishment  of  fraudulent 
debtors  is  not  suspended  by  the  bankrupt  law,  Scully  v.  Kirkpatrick,  79 
Penn.  324. 

The  bankrupt  law  does  not  supersede  the  State  laws  relating  to  the 
settlement  of  the  insolvent  estate  of  lunatics,  spendthrifts  or  deceased  per- 
sons. Hawkins  v.  Learned,  54  N.  H.  333.. 

A  State  law  which  makes  a  transfer  by  an  insolvent  with  intent  to  give 
a  preference,  operate  as  an  assignment  for  the  benefit  of  all  creditors,  is  not 
an  insolvent  law  and  is  not  superseded  by  the  bankrupt  law.  Ebersole  v. 
Adams,  13  B.  R.  141  ;  S.  C.  10  Bush.  83;  Linthicum  v.  Fenley,  IT  Bush. 


The  bankrupt  law  does  not  supersede  a  State  law  regulating  assign- 
ments for  the  benefit  of  creditors.  Mayer  v.  Hellman,  13  B.  R.  440  ;  S.  C. 
91  U.  S.  496  ;  in  re  Hawkins  et  al.  2  B.  R.  378  ;  S.  C.  34  Conn.  548;  Beck 
^/.  Parker,  65  Penn.  262;  Maltbie  v.  Hotchkiss,  5  B.  R.  485;  8.0.38 
Conn.  80;  Von  Hein  v,  Elkus,  15  B.  R.  195  ;  S.  C.  15  N.  Y.  Supr.  516. 

The  law  allowing  assignments  for  the  benefit  of  creditors  is  not  a  part 
-of  the  insolvent  laws,  and  is  not  superseded  by  the  bankrupt  law.  Cook 
-zx.  Rogers,  13  B.  R.  97;  S.  C.  31  Mich.  391  ;  14  A.  L.  Reg.  633. 

A  State  law  which  provides  the  mode  of  apportioning  the  losses  of  a 
savings  bank  among  the  depositors,  is  valid  although  it  was  passed  while 


STATE    INSOLVENT    LAWS.  77 

the  bankrupt  law  was  in  force.     Simpson  v.  Savings  Bank,  15  B.  R.  385  ; 
S.  C.  56  N.  H.  466. 

A  provision  in  a  State  law,  which  prohibits  an  insolvent  corporation 
from  transferring  its  property  with  the  intention  of  giving  a  preference,  is 
superseded.  French  v.  O'Brien,  52  How.  Pr.  394. 

An  act  which  provides  for  the  arrest  of  a  debtor  who  removes  or  dis- 
poses of  riis  property  with  the  intent  to  defraud  his  creditors,  is  not  super- 
seded. Gregg  v.  Hilsen,  34  Leg.  Int.  20. 

An  assignment  made  as  a  part  of  the  machinery  of  a  State  insolvent 
law,  and  deriving  all  its  validity  and  efficacy  from  the  statute  is  void. 
Shryock  v.  Bashore,  13  B.  R.  481  ;  S.  C.  156.  R.  283  ;  82  Penn.  159  ; 
Rowe  v.  Page,  13  B.  R.  366  ;  s.  C.  54  N.  H.  190. 

'Whether  an  assignment  in  proceedings  under  a  State  insolvent  law  is 
void,  is  a  question  that  may  be  raised  in  a  collateral  action.  Shryock  V* 
Bashore,  13  B.  R.  481  ;  s.  C.  15  B.  R.  283  ;  82  Penn.  159. 

The  insolvent  laws  are  no  further  suspended  than  they  seek  upon  no- 
torious grounds  to  seize  and  distribute  the  effects  of  the  debtor  among  his 
creditors  generally.  A  statute  for  the  more  effectual  appropriation  of  a 
debtor's  property  to  satisfy  an  individual  debt  is  not  suspended.  Berthelon 
v.  Betts,  4  Hill,  577. 

The  State  insolvent  laws  were  not  suspended  until  June  I,  1867.  Day 
v.  Bardwell  et  al,  3  B.  R.  455  ;  S.  C.  97  Mass.  246;  Martin  v.  Berry,  2  B. 
R.  629 ;  s.  C.  37  Cal.  208  ;  2  L.  T.  B.  180 ;  Chamberlain  v.  Perkins,  51  N. 
H.  336;  Augsbury  v.  Grossman,  17  N.  Y.  Supr.  387. 

The  State  laws  are  operative  to  some  extent  and  for  some  purposes. 
They  are  clearly  operative  in  all  cases  which  are  not  within  the  provisions 
of  the  bankrupt  law.  Shepardson's  Appeal,  36  Conn.  23  ;  Clarke  v.  Ray_ 
i  H.  &  J.  318;  in  re  Winternitz,  4  B.  R.  (quarto),  127 ;  S.  C.  18  Pitts.  L. 
J.6i. 

The  bankrupt  law  applies  only  to  cases  where  the  debtor  owes  debts 
provable  under  the  act  exceeding  the  amount  of  three  hundred  dollars. 
When  the  debts  do  not  exceed  that  amount,  the  case  is  not  within  the  pur- 
view of  the  act.  Before  proceedings  under  the  State  law  can  be  held  to  be 
erroneous,  it  must  affirmatively  appear  that  the  debts  are  more  than  that 
amount.  Until  then  there  is  no  conflict  of  laws,  and  courts  will  not  pre- 
sume that  the  debts  are  more  or  less  than  that  amount.  Shepardson's 
Appeal,  36  Conn.  23. 

The  State  insolvent  laws  are  still  in  force  so  far  as  they  affect  debts  that 
will  not  be  released  by  a  discharge  under  the  bankrupt  act,  such  as  debts 
created  by  the  fraud  of  the  bankrupt.  Where  the  bankrupt  act  expressly 


78  CONSTITUTION    OF    THE    UNITED    STATES. 

excepts  a  class  of  cases,  it  must  have  been  the  intention  of  Congress  not  to 
interfere,  in  such  specified  class,  with  the  laws  of  the  several  States.  A 
party  imprisoned  under  a  judgment  founded  npon  a  fraudulent  debt,  may 
take  the  benefit  of  the  State  insolvent  laws  for  the  purpose  ot  obtaining  a  re- 
lease and  discharge  from  that  debt.  In  re  Winternitz,  4  B.  R.  (quarto),  127 ; 
S.  C.  1 8  Pitts.  L.  J.  6 1  ;  Stepp  v.  Stahl,  2  W.  N.  80. 

The  State  insolvent  laws  are  suspended  even  as  between  citizens  of  the 
same  State.  Cassard  et  al.  v.  Kroner,  4  B.  R.  569. 

An  attachment  law  which  permits  a  writ  of  attachment  to  issue  for  the 
causes  which  would  be  sufficient  to  authorize  the  institution  of  proceedings 
in  involuntary  bankruptcy,  and  authorizes  the  distribution  of  the  property 
equally  among  all  the  creditors,  is  superseded.  Tobin  v.  Trump,  3  Brews. 
288;  S.  C.  7  Phila.  123. 

There  is  a  material  distinction  between  discharging  a  debtor  and  dis- 
tributing his  assets  among  his  creditors.  The  bankrupt  act  was  demanded 
and  passed  mainly  for  the  former.  The  latter  is  in  its  nature  incidental  to 
the  former,  which  is  the  principal  thing.  There  probably  existed  in  every 
State,  at  the  time  of  the  passage  of  the  bankrupt  law,  some  statutory  pro- 
visions for  the  distribution  of  the  effects  of  insolvent  debtors  among  their 
creditors,  and  it  can  hardly  be  supposed  that  Congress  intended  to  repeal 
or  suspend  those  State  laws,  except  so  far  as  was  necessary  for  the  accom- 
plishment of  the  main  object  in  view,  and  that  necessity  may  well  be  limited 
to  those  cases  over  which  the  Federal  courts  actually  assert  their  jurisdic- 
tion within  the  time  limited  for  that'  purpose.  An  assignment  under  the 
State  law  is  good  unless  attacked  within  six  months.  If  all  the  parties 
concerned  desire  that  the  estate  may  be  settled  in  the  State  courts,  it  can 
be  done.  Should  a  case  arise  in  which  there  will  be  an  actual  conflict  of 
jurisdiction,  the  State  courts  must  yield  to  the  Federal  courts,  and  when 
the  bankrupt  court,  within  the  time  limited,  asserts  its  jurisdiction,  the  pro- 
ceedings in  the  State  court  are  thereby  superseded.  Should  the  State  courts 
attempt  to  grant  a  certificate  of  discharge  to  an  insolvent  debtor,  no  court 
would  give  any  effect  to  it.  Maltbie  v.  Hotchkiss,  5  B.  R.  485  ;  S.  C.  38 
Conn.  80;  Reed  v.  Taylor,  4  B.  R.  710;  S.  C.  32  Iowa,  209. 

If  the  debtor  has  not  committed  an  act  of  bankruptcy,  and  declines  to 
go  into  voluntary  bankruptcy,  a  creditor  may  proceed  against  him  under 
the  State  insolvent  law,  where  such  proceedings  are  in  harmony  with  the 
purpose  of  the  bankrupt  law,  for  the  State  insolvent  law  remains  in  full  force 
in  respect  to  all  persons  and  matters  over  which  the  bankrupt  law  declines 
to  take  jurisdiction.  Geery's  Appeal,  43  Conn.  289. 

Whether  a  State  insolvent  law  is  unconstitutional  is  a  question  that  can 
not  be  raised  by  the  defendant  in  an  action  by  an  insolvent  trustee  to  re- 
cover a  debt  due  to  the  estate.  Shryock  v.  Bashore,  13  B.  R.  48;  S.  C.  15 
B.  R.  283;  82  Penn.  159. 


CURRENCY.  79 

As  a  bankrupt  law  merely  suspends  State  insolvent  laws  without  repeal- 
Ing  them,  they  revive  and  are  in  force  on  the  repeal  of  the  bankrupt  law, 
and  need  not  be  re-enacted.  -Lavenders.  Gosnell,  12  B.  R.  282;  s.  C.  43 
Md.  153. 

The  bankrupt  law  must  prevail  in  cases  where  it  conflicts  with  the  ordi- 
nance of  1787.  Stow  v.  Parks,  i  Chand.  60. 


Currency. 

(/)  The  term  money  is  used  in  different  places  in  the  Constitution,  as  it 
is  elsewhere,  in  somewhat  different  senses.  Here,  however,  it  means  me- 
tallic money — gold,  silver  and  copper,  or  the  metals  used  for  coin,  and  no 
more.  The  phrase  "  coining  "  can  not,  without  violence,  be  applied  to  the 
issue  of  paper  money.  To  coin  money  is  to  make,  stamp  and  issue  coins 
as  money.  Coins  are  pieces  of  metal  of  a  particular  weight  and  standard, 
and  to  which  a  particular  value  is  given  in  account  and  payment.  The 
clause  which  follows,  "  to  regulate  the  value  thereof,"  evidently  means  to 
authorize  the  regulation  of  the  value  of  the  coins  thus  issued  or  the  money 
coined,  and  that  is  metallic  money.  Metropolitan  Bank  v.  Van  Dyck,  27 
N.  Y.  400  ;  Hague  v.  Powers,  39  Barb.  427  ;  Thayer  V.  Hedges,  22  Ind. 
282  ;  Maynard  v.  Newman,  I  Nev.  271. 

The  National  Government  is  to  "  coin  money,"  that  is,  to  fix  the  na- 
tional stamp  upon  the  metals  which  are  to  be  used  as  money,  to  determine 
the  character  of  the  national  currency,  and  what  shall  be  the  measure  or     / 
standard  of  value,  and  what  the  different  kinds  used  for  money,  and  into 
what  denominations  the  money  shall  be  divided,  or  of  what  it  shall  consist. 

Hague  v.  Powers,  39  Barb.  427 ;  Griswold  v.  Hepburn,  2  Duval,  20. 

• 

The  language  of  the  Constitution,  by  its  proper  signification,  is  limited 
to  the  faculty  in  Congress  of  coining  and  of  stamping  the  standard  of  value 
upon  what  the  Government  creates  or  shall  adopt,  and  of  punishing  the 
offense  of  producing  a  false  representation  of  what  may  have  been  so 
created  or  adopted.  Fox  v.  State,  5  How.  410. 

The  Constitution  clearly  designed  to  take  all  questions  of  currency, 
whether  paper  or  metal,  from  the  several  States ;  and  it  is  in  the  discretion    , 
of  Congress  to  make  of  its  tokens,  whether  of  one  substance  or  another, 
tenders  in  such  amounts  and  for  such  purposes  as  may  be  determined  upon. 
Van  Husan  v.  Kanouse,  13  Mich.  303. 

The  power  to  regulate  the  value  of  money  is  without  any  limitation  or 
restriction  whatever.  On  that  subject  Congress  has  as  supreme  and  un- 
limited powers  as  any  sovereignty  in  the  world.  George  v.  Concord,  45 
N.  H.  434  ;  Maynard  v.  Newman,  I  Nev.  271  ;  Shollenberger  v.  Brinton, 
52  Penn.  9. 


8O  CONSTITUTION    OF    THE    UNITED    STATES. 

The  grant  of  the  power  to  coin  money  does  not  contain  an  implied  pro- 
hibition against  the  enactment  of  laws  making  treasury  notes  a  legal  tender. 
Legal  Tender  Cases,  12  Wall.  457. 

The  power  to  regulate  the  value  of  coin  does  not  make  that  coin  of 
necessity  a  legal  tender  at  the  value  so  fixed.  Van  Husan  v.  Kanouse,  1 3 
Mich.  303. 

The  power  to  coin  money  is  one  power,  and  the  power  to  declare  any- ,/ 
thing  a  legal  tender  is  another  and  different  power.     Thayer  v.  Hedges, 

22  Ind.  282. 

The  power  to  declare  what  shall  or  shall  not  be  a  legal  tender,  or  in 
other  words  lawful  money  of  a  country,  is  a  necessary  incident  of  sovereignty, 
and  has  ever  been  exercised  by  the  sovereign  power  in  all  civilized  nations.  */ 
The  power  to  make  tender  laws  is  an  implied  power,  and  may  be  derived 
from  many  of  the  express  powers  conferred  upon  Congress.  Metropolitan 
Bank  v.  Van  Dyck,  27  N.  Y.  400;  George  v.  Concord,  45  N.  H.  434; 
Van  Husan  v.  Kanouse,  13  Mich.  303;  Maynard  v.  Newman,  I  Nev.  271  ; 
Shollenberger  v.  Brinton,  52  Penn.  9. 

A  statute  making  treasury  notes  a  legal  tender  in  time  of  war,  with  the 
design  of  preserving  the  Government,  is  valid.  Dooley  v.  Smith,  13  Wall. 
604;  Railroad  Co.  v.  Johnson,  15  Wall.  195;  Legal  Tender  Cases,  12 
Wall.  457 ;  Black  v.  Lusk,  69  111.  70 ;  Hague  v.  Powers,  39  Barb.  427 ; 
Reynolds  v.  Bank,  18  Ind.  467  ;  Lick  v.  Faulkner,  25  Cal.  404 ;  Curiac  v. 
Albadie,  25  Cal.  502  ;  Kierski  v.  Matthews,  25  Cal.  591  ;  Thayer  v.  Hedges, 

23  Ind.  141  ;  George  v.  Concord,  45  N.  H,  434 ;  Latham  v.  U.  S.  i  Ct.  Cl. 
149;  s.  C.  2  Ct.  Cl.  573;  Hintrager  v.  Bates,  18  Iowa,  174;  Shollenberger 
v.  Brinton,  52  Penn.  9;  Jones  v.  Harker,  37  Geo.  503  ;    contra,  Hepburn  v. 
Griswold,  8  Wall.  603 ;  s.  C.  2  Duval,  20. 

The  power  to  make  treasury  notes  a  legal  tender  is  not  to  be  resorted 
to  except  upon  extraordinary  and  pressing  occasions,  such  as  war  or  other 
public  exigencies  of  great  gravity  and  importance,  and  should  be  no  longer 
exerted  than  all  the  circumstances  of  the  case  demand.  It  is  for  the  legis- 
lative department  of  the  Government  to  judge  of  the  occasions  when,  and 
of  the  times  how  long,  it  shall  be  exercised  and  in  force.  Legal  Tender 
Cases,  12  Wall.  457. 

There  is  no  well-founded  distinction  between  the  constitutional  validity 
of  an  act  of  Congress  declaring  treasury  notes  a  legal  tender  for  the  pay- 
ment of  debts  contracted  after  its  passage,  and  that  of  an  act  making  them 
a  legal  tender  for  the  discharge  of  all  debts,  as  well  those  incurred  before 
as  those  made  after  its  enactment.  Legal  Tender  Cases,  12  Wall.  457. 

The  obligation  of  a  contract  to  pay  money,  is  to  pay  that  which  the  law 
shall  recognize  as  money  when  the  payment  is  to  be  made.  Every  contract 
for  the  payment  of  money  is  subject  to  the  constitutional  power  of  the 


COUNTERFEITING.  8 1 

Government  over  the  currency,  and  the  obligation  of  the  parties  is  assumed 
with  reference  to  that  power.     Legal  Tender  Cases,  12  Wall.  457. 

The  jurisdiction  of  the  several  States  on  the  subject  of  taxation  for  all 
State  purposes,  is  supreme,  and  over  it  the  Federal  Government  has  no 
power  or  control.  If  the  State  law  requires  the  taxes  to  be  paid  in  coin,  its 
mandate  must  be  obeyed,  although  Congress  may  have  made  something 
else  a  legal  tender  for  debts.  State  v.  Wright,  28  111.  509 ;  Whitaker  v. 
Haley,  2  Oregon,  128. 

The  power  of  coining  money  and  regulating  its  value,  was  delegated  to 
Congress  by  the  Constitution,  for  the  very  purpose  of  creating  and  preserv- 
ing the  uniformity  and  purity  of  such  a  standard  of  value,  and  on  account  of 
the  impossibility,  which  was  foreseen,  of  otherwise  preventing  the  in- 
equalities and  the  confusion  necessarily  incident  to  different  views  of  policy 
which  in  different  communities  would  be  brought  to  bear  on  this  subject. 
The  power  to  coin  money  being  thus  given  to  Congress,  founded  on  public 
necessity,  it  must  carry  with  it  the  correlative  power  of  protecting  the 
•creature  and  object  of  that  power.  Hence  Congress  may  provide  for  the 
punishment  of  the  offense  of  uttering  or  circulating  counterfeit  coin.  U.  S. 
V.  Marigold,  9  How.  560;  Campbell  v.  U.  S.  10  Law  Rep.  400:  contra, 
U.  S.  v.  —  — ,12  Law  Rep.  90. 

Weights. 

(g)  The  States  have  the  right  to  regulate  weights  and  measures  until 
Congress  shall  act  on  the  subject.  Weaver  v.  Fegley,  29  Penn.  27. 

Counterfeiting. 

(Ji)  The  term  counterfeiting  applies  to  the  act  of  making,  in  contradis- 
tinction to  the  act  of  circulating,  counterfeit  coin.  Campbell  V.  U.  S.  10 
Law  Rep.  400. 

• 

There  is  a  manifest  distinction  between  counterfeiting  and  uttering  false 

coin.  The  former  is  an  offense  directly  against  the  Government,  by  which 
individuals  may  be  affected  ;  the  latter  is  a  private  wrong  by  which  the 
Government  may  be  remotely,  if  it  will  in  any  degree,  be  reached.  The 
criminality  of  the  latter  consists  in  obtaining,  for  a  false  representative  of 
the  true  coin,  that  for  which  the  true  coin  alone  is  the  equivalent.  The 
latter  is  an  offense  against  the  State,  and  may  be  punished  by  the  laws  of 
the  State.  Fox  v.  State,  5  How.  410;  U.  S.  v.  Marigold,  10  How  560; 
Harlan  v.  People,  I  Doug  207  ;  State  v  Antonio,  2  Tread.  776  ;  People  v. 
White,  34  Cal.  183;  Sizemore  v.  State,  3  Head,  26. 

A  State  may  impose  a  penalty  upon  the  act  of  keeping  moulds  and 
tools  adapted  and  designed  for  producing  counterfeit  coin,  coupled  with 
the  intent  of  using  them  for  that  purpose.  State  v.  Brown,  2  Oregon,  221. 


82  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  may  punish  the  offense  of  keeping  counterfeit  coin  with  the- 
intent  to  pass  the  same.  Sizemore  v.  State,  3  Head,  26. 

Congress  has  exclusive  authority  to  declare  the  penalty  for  the  acts  nec- 
essary for  the  counterfeiting,  that  is,  the  making  or  producing  of  the  false 
representation  on  metal,  of  the  designs  found  on  coin,  and  the  Federal 
courts  exclusive  jurisdiction  over  its  enforcement.  State  v.  Brown,  2  Ore- 
gon, 221. 

A  national  bank  note  is  not  current  coin  nor  a  security  of  the  United 
States,  and  a  State  law  to  punish  the  counterfeiting  thereof,  is  valid.  State 
v.  Randall,  2  Aik.  89. 

Post-office§   and  Po§t-roacl§. 

(/)  The  word  "  establish  "  means  not  merely  to  designate,  but  to  create,, 
erect,  build,  prepare,  fix  permanently.  "  To  establish  post-offices  and  post- 
roads,"  means  ex  vi  termini  not  only  the  designation  and  adoption  of  an 
existing  house  and  road  for  a  post-office  and  a  post-road,  but  also  more 
comprehensively  the  renting  or  building  of  a  house,  and  the  construction 
and  reparation  of  a  road,  and  the  appropriation  of  money  for  any  of  those 
national  purposes  whenever  any  of  them  shall  be  deemed  useful.  Dickey 
v.  Turnpike  Co.  7  Dana,  119. 

The  power  to  establish  post-roads  is  something  more  than  the  power  to 
establish  post-offices.  The  former  is  as  supreme  and  plenary  as  the  latter, 
and  both  together  were  intended  to  embrace  everything  necessary  and 
proper  for  regulating  and  transporting  the  mails  in  such  manner  as  Con- 
gress might  deem  best.  Dickey  v.  Turnpike  Co.  7  Dana,  119. 

The  power  to  establish  post-roads  is  deemed  to  be  exhausted  in  the 
designation  of  roads  on  which  the  mails  are  to  be  transported.  U.  S.  v. 
Railroad  Bridge  Co.  6  McLean,  517. 

This  comprehensive*  and  express  power  was  given  not  for  authorizing 
the  mere  designation  and  use  of  State  roads  as  post-roads,  but  for.  enabling 
the  Government  to  make,  repair  and  keep  open  such  roads  in  every  State 
as  may,  under  any  circumstances,  be  necessary  for  the  most  effectual  and 
satisfactory  fulfillment  of  the  great  national  trust  of  transporting  the  national 
mails  safely,  certainly,  speedily  and  punctually  without  any  necessary  de- 
pendence on  the  policy  or  will  or  purse  of  any  one  of  the  States.  Searight 
v.  Stokes,  3  How.  151;  Neil  v.  State,  3  How.  720;  Dickey  v.  Turnpike 
Co.  7  Dana,  119. 

Congress  has  the  power  to  make  contracts  relating  to  the  establishment 
of  post-roads.  Searight  v.  Stokes,  3  How.  151. 

A  mail  contractor  can  not  use  a  road  in  a  State  without  paying  the 
same  tolls  as  other  citizens.  Dickey  v.  Turnpike  Co.  7  Dana,  119. 


PATENTS    AND    COPYRIGHTS.  83 

Congress  has  the  power  to  authorize  any  telegraph  company  to  con 
struct,  maintain  and  operate  lines  of  telegraph  along  any  of  the  military  o 
post-roads  of  the  United  States.     Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co. 
Woods,  643. 

Patents  and  Copyrights, 

(/)  The  word  "secure"  does  not  mean  the  protection  of  an  acknowl- 
edged legal  right.  Wheaton  v.  Peters,  8  Pet.  591. 

No  State  can  in  any  form  interfere  with  the  right  of  private  persons 
under  the  copyright  laws  of  the  United  States.  Little  v.  Gould,  2  Blatch. 
165,  362. 

The  Constitution  does  not  authorize  the  protection  of  a  dramatic  com- 
position which  is  grossly  indecent  and  calculated  to  corrupt  the  morals  of 
the  people.  Martinetti  v.  Maguire,  i  Deady,  216;  S.  C.  I  Abb.  C.  C,  356. 

In  the  exercise  of  this  power,  Congress  is  limited  to  authors  and  invent- 
ors only.  This  clause,  therefore,  never  can  admit  of  so  extensive  a  con- 
struction as  to  prohibit  the  respective  States  from  exercising  the  power  of 
securing  to  persons  introducing  useful  inventions,  without  being  the  authors 
or  inventors,  the  exclusive  benefit  of  such  inventions  for  a  limited  time. 
Livingston  v.  Van  Ingen,  9  Johns.  507. 

The  power  is  general  to  grant  to  inventors,  and  it  rests  in  the  sound 
discretion  of  Congress  to  say  when  and  for  what  length  of  time,  and  under 
what  circumstances,  the  patent  for  an  invention  shall  be  granted.  There 
is  no  restriction  which  limits  the  power  of  Congress  to  cases  where  the  in- 
vention has  not  been  known  or  used  by  the  public.  All  that  is  required  is 
that  the  patentee  shall  be  the  inventor.  An  act  which  gives  a  patent  for 
an  invention  which  was  in  public  use  and  enjoyed  by  the  community  at  the 
time  of  its  passage,  is  not  for  that  reason  unconstitutional.  Blanchard  v. 
Sprague,  2  Story,  164;  S.  C.  3  Sum.  535;  Evans  v.  Jordan,  I  Brock.  248  ; 
S.  C.  9  Cranch,  199;  Jordan  v.  Uobson,  4  Fish.  232;  S.  C.  27  Leg.  Int.  292. 

The  power  thus  granted  is  domestic  in  its  character,  and  necessarily 
confined  within  the  limits  of  the  United  States.  Brown  v.  Duchesne,  19 
How.  183 

This  constitutional  power  might  have  been  fully  exercised  by  Congress 
in  making  special  grants  of  patents.*  Congress  might  have  spent  much 
time  by  such  a  course,  and  may  not  be  the  most  competent  body  to  inves- 
tigate the  facts  and  do  equal  justice  to  inventors,  but  this  wquld  be  a  ques- 
tion of  expediency  and  not  of  constitutional  power.  Bloomer  v.  Stolley,  5 
McLean,  158. 

* 

The  machinery  through  which  the  right  to  a  patent  is  ordinarily  applied 

for  and  obtained,  may  be  dispensed  with,  and  the  title  may  be  conferred  by 
a  legislative  grant,  and  this  may  be  done  in  regard  to  the  extension  of  an 


84  CONSTITUTION    OF    THE    UNITED    STATES. 

exclusive  right  the  same  as  in  originally  granting  it.  No  constitutional 
restriction  appears  to  exist  against  the  exercise  of  this  power  by  Congress. 
Bloomer  v.  Stolley,  5  McLean,  1 58. 

Congress  has  the  power  to  confer  a  new  and  extended  term  upon  the 
patentee,  even  after  the  expiration  of  the  first.  Jordan  v.  Dobson.  4  Fish. 
232 ;  S.  C.  27  Leg.  Int.  292  ;  Blanchard  v,  Haynes,  6  West.  L.  J.  82 ; 
Blanchard's  Factory  v.  Warner,  I  Blatch.  258 ;  Evans  v.  Robinson,  I  Car. 
Law  Rep.  209. 

The  power  of  Congress  to  secure  the  rights  and  privileges  of  assignees 
upon  extending  a  patent  is  incidental  to  the  general  power  conferred  by  the 
Constitution  on  Congress  to  promote  the  progress  of  the  useful  arts  by 
securing  to  inventors  for  limited  times  the  exclusive  right  to  their  discov- 
eries. The  assignees  of  the  original  patentee  are  frequently  most  instru- 
mental in  putting  the  invention  into  general  use,  and  bringing  it  success- 
fully before  the  public  by  the  expenditure  of  their  time  and  money.  More 
than  half,  probably,  of  the  useful  patented  inventions  have  been  thus  brought 
into  general  public  use,  the  successful  results  operating  directly  or  indi- 
rectly for  the  benefit  and  interest  of  the  patentees.  Although  this  would 
not  authorize  the  renewal  of  a  grant  to  assignees,  as  no  such  power  exists 
in  the  Constitution,  still  in  exercising  the  power  in  favor  of  the  inventor,  it 
would  be  going  too  far  to  say  that  Congress  has  no  right  to  regard  inci- 
dentally the  interests  of  meritorious  assignees.  Blanchard's  Factory  v. 
Warner,  I  Blatch.  258. 

It  is  not  the  province  of  the  judiciary  to  inquire  into  the  reasons  which 
induced  the  passage  of  the  law,  with  the  view  of  testing  its  validity.  If 
constitutional  it  must  be  enforced  without  regard  to  the  policy  or  justice 
which  dictated  it.  No  inquiry  as  to  the  expenses  and  labor  need  be  made 
when  a  patent  is  extended  by  a  special  act  of  Congress.  Bloomer  v.  Stol- 
ley, 5  McLean,  158. 

It  does  not  follow  from  this  power  that  Congress  may  from  time  to 
time,  as  they  think  proper,  authorize  an  inventor  to  recall  rights  which  he 
has  granted  to  others,  or  reinvest  in  him  rights  of  property  which  he  has 
before  conveyed  for  a  fair  and  valuable  consideration.  Bloomer  z/.  Mc- 
Quewen,  14  How.  539. 

Though  changes  in  the  patent  laws  may  be  retrospective  in  their  oper- 
ation, that  is  not  a  sound  objection  to  their  validity.  The  power  of  Con- 
gress to  legislate  upon  the  subject  of  patents  is  plenary  by  the  terms  of  the 
Constitution,  and  as  there  are  no  restraints  on  its  exercise,  there  can  be  no 
limitation  of  their  right  to  modify  them  at  their  pleasure,  so  that  they  do 
not  take  away  the  rights  of  property  in  existing  patents.  M'Clurg  v.  Kings- 
land,  I  How.  202. 

The  property  in  inventions  exists  by  virtue  of  the  laws  of  Congress,  and 


PATENTS    AND    COPYRIGHTS.  85 

no  State  has  a  right  to  interfere  with  its  enjoyment,  or  to  annex  conditions 
to  the  grant.  If  the  patentee  complies  with  the  laws  of  Congress  on  the 
subject,  he  has  a  right  to  go  into  the  open  market  anywhere  within  the 
United  States,  and  sell  his  property.  An  act  of  a  State  legislature  that 
attempts  to  direct  the  manner  in  which  patent  rights  shall  be  sold  in  the 
State,  is  void.  Ex  parte  Robinson,  4  Fish.  186;  Hollida  v.  Hunt,  70  111. 
109;  Helm  v.  First  National  Bank,  43  Ind.  167;  Crittenden  v.  White,  9 
C.  L.  N.  no. 

If  a  corporation  is  the  owner  of  a  patent,  and  its  transactions  in  another 
State  are  connected  with  the  sale,  use  or  manufacture  of  the  invention  de- 
scribed in  the  patent,  it  is  not  subject  to  the  provisions  of  the  State  law^  t 
relating  to  foreign  corporations.     Grover  &  Baker  S.  M.  Co.  v.  Butler,  53 
Ind.  454;  Walter  A.  Wood  Mowing  Machine  Co.  v.  Caldwell,  54  Ind  270. 

No  State  can  require  that  the  consideration  of  a  note  given  for  a  patent 
shall  be  expressed  on  the  face  thereof,  and  make  such  note  subject  in  the 
hands  of  third  parties  to  all  defenses  which  could  have  been  made  against 
the  payee.  Hollida  v.  Hunt,  70  111.  109  ;  Cranson  v.  Smith,  5  Cent.  L.  J. 
386 ;  S.  C.  16  A.  L.  J.  330;  Woolen  v.  Banker,  4  A.  L.  Rec.  236. 

A  State  law  regulating  the  sale  of  an  article  manufactured  in  pursuance 
of  a  patented  invention,  because  it  is  dangerous,  is  valid,  for  there  is  a 
manifest  distinction  between  the  right  of  property  in  the  patent  and  the  " 
right  to  sell  the  property  resulting  from  the  invention  or  patent.    Patterson 
v.  Comm.  n  Bush.  311. 

The  end  of  the  statute  is  to  encourage  useful  inventions,  and  to  Tiold 
forth  the  exclusive  use  of  his  invention  for  a  limited  period  as  an  induce- 
ment to  the  inventor.  The  sole  operation  of  the  statute  is  to  enable  him  to 
prevent  others  from  using  the  products  of  his  labor  except  with  his  con- 
sent. But  his  own  right  of  using  it  is  not  enlarged  or  affected.  There  re- 
mains in  him,  as  in  every  other  citizen,  the  power  to  manage  his  property 
or  give  direction  to  his  labor  at  his  pleasure,  subject  only  to  the  paramount 
claims  of  society  which  require  that  his  enjoyment  may  be  modified  by  the 
exigencies  of  the  community  to  which  he  belongs,  and  regulated  by  laws 
which  render  it  subservient  to  the  general  welfare  if  held  subject  to  State 
control.  An  attempt  by  the  legislature  in  good  faith,  to  regulate  the  con- 
duct of  a  portion  of  its  citizens  in  a  matter  strictly  pertaining  to  its  internal 
economy,  is  a  legitimate  exercise  of  power,  although  the  law  may  some- 
times indirectly  affect  the  enjoyment  of  rights  flowing  from  the  Federal 
Government.  A  patent  for  a  medicine  does  not  confer  upon  the  patentee 
the  right  to  prescribe  it  for  the  sick  without  complying  with  the  State  laws 
for  licensing  physicians.  Jordan  v.  Dayton,  4  Ohio,  294. 

The  right  of  property  in  an  invention  or  discovery  does  not  imply  the 
unlimited  power  of  using  it.  Its  use  is  subject  to  the  laws  and  under  the 
control  of  the  several  States.  Livingston  v.  Van  Ingen,  9  Johns.  507. 


86  CONSTITUTION    OF    THE    UNITED    STATES. 

A  patent  for  a  plan  for  constructing  and  drawing  lotteries  does  not  au- 
thorize the  patentee  to  establish  a  lottery  in  a  State  whose  laws  prohibit 
lotteries  on  the  ground  that  they  are  pernicious  and  destructive  to  frugality 
and  industry,  and  introductive  of  idleness  and  immorality,  and  against  the 
common  good  and  general  welfare.  .  Vannini  v.  Paine,  i  Harrington,  65. 

Piracy. 

(K)  Congress  need  not  define  in  terms  the  offense  of  piracy,  but  may 
leave  it  to  be  ascertained  by  judicial  interpretation.  U.  S.  v.  Smith,  5 
Wheat.  153;  U.  S.  v.  Furlong,  5  Wheat.  184. 

To  define  piracies  in  the  sense  of  the  Constitution  is  merely  to  enume- 
rate the  crimes  which  shall  constitute  piracy,  and  this  may  be  done  either 
by  a  reference  to  crimes  having  a  technical  name  and  determinate  extent, 
or  by  enumerating  the  acts  in  detail  upon  which  the  punishment  is  in- 
flicted. U.  S.  v.  Smith,  5  Wheat.  153. 

Congress  may  provide  for  the  punishment  of  a  conspiracy  to  burn  a 
vessel  with  intent  to  injure  underwriters.  U.  S.  v.  Cole,  5  McLean,  513. 

Congress  has  the  power  to  punish  an  attempt  to  commit  a  mutiny  and 
revolt  on  a  vessel  on  the  high  seas.  U.  S.  v.  Crawford,  i  N.  Y.  Leg.  Obs. 
288. 

War. 

(/)  Congress  alone  has  the  power  to  declare  a  national  or  foreign  war. 
Perkins  v.  Rogers,  35  Ind.  124;  Prize  Cases,  2  Black.  635;  The  Tropic 
Wind,  24  Law  Rep.  144. 

The  authority  to  suppress  rebellion  may  be  found  in  the  power  to  de- 
clare war.  Texas  v.  White,  7  Wall.  700  ;  contra,  Norris  v.  Doniphan,  4 
Met.  (Ky.)  385. 

War  declared  by  Congress  is  not  the  only  war  within  the  contemplation 
of  the  Constitution.  The  Tropic  Wind,  24  Law  Rep.  144. 

Rebels  are  at  the  same  time  belligerents  and  traitors,  and  subject  to 
the  liabilities  of  both ;  while  the  United  States  sustains  the  double  charac- 
ter of  a  belligerent  and  sovereign,  and  has  the  rights  of  both.  These 
rights  co-exist,  and  may  be  exercised  at  pleasure.  Prize  Cases,  2  Black. 
635  ;  The  Amy  Warwick,  2  Sprague,  123. 

The  power  to  declare  war  involves  the  power  to  prosecute  it  by  all 
means  and  in  any  manner  in  which  war  may  be  legitimately  prosecuted. 
It,  therefore,  includes  the  right  to  seize  and  confiscate  all  property  of  an 
enemy,  and  to  dispose  of  it  at  the  will  of  the  captor.  Miller  v.  U.  S.  1 1 
Wall.  268. 


WAR.  87 

Congress  has  the  power  to  confiscate  the  property  of  public  enemies, 
whether  the  war  is  a  civil  or  a  foreign  war.  Miller  v.  U.S.  1 1  Wall.  268 ; 
Tyler  v.  Defrees,  II  Wall.  331  ;  Prize  Cases,  2  Black.  635;  The  Ned,  I 
Blatch.  Pr.  119. 

The  Constitution  confers  absolutely  on  the  Government  the  powers  of 
making  war  and  of  making  treaties ;  consequently  it  possesses  the  power 
of  acquiring  territory  either  by  conquest  or  by  treaty.  Am.  Ins.  Co.  v. 
Canter,  i  Pet.  511  ;  Fleming  v.  Page,  9  How.  603. 

Under  the  power  to  "  declare  war,"  Congress  has  the  power  to  make 
treasury  notes  a  legal  tender  for  public  and  private  debts.  Legal  Tender 
Cases,  12  Wall.  457;  Dooley  v.  Smith,  13  Wall.  604;  Railroad  Co.  v. 
Johnson,  15  Wall.  195  ;  Black  v.  Lusk,  69  111.  70;  Hague  v.  Powers,  39 
Barb.  427  ;  Reynolds  v.  Bank,  18  Ind.  467 ;  Lick  v.  Faulkner,  25  Cal.  404; 
Curiac  v.  Abadie,  25  Cal.  502 ;  Kierski  v.  Mathews,  25  Cal.  591 ;  Thayer 
•v.  Hedges,  23  Ind.  141  ;  George  v.  Concord,  45  N.  H.  434  ;  Hintrager  v. 
Bates,  18  Iowa,  174;  Shollenberger  v.  Brinton,  52  Penn.  9;  Jones  v.  Har- 
ker,  37  Geo.  503  ;  contra,  Hepburn  v.  Griswold,  8  Wall.  603 ;  s.  C.  2 
Duval,  20. 

The  word  ''  declare  "  has  several  senses.  It  may  mean  to  proclaim  or 
publish.  It  should,  however,  be  interpreted  in  the  sense  in  which  the 
phrase  is  used  among  nations  when  applied  to  such  a  subject-matter.  A 
power  to  declare  war  is  a  power  to  make  and  carry  on  war.  It  is  not  a 
mere  power  to  make  known  an  existing  thing,  but  to  give  life  and  effect  to 
the  thing  itself.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

The  power  to  declare  war  presupposes  the  right  to  make  war.  The 
power  to  declare  war  necessarily  involves  the  power  to  carry  it  on,  and  this 
implies  the  means.  The  right  to  the  means  carries  all  the  means  in  the 
possession  of  the  nation.  Every  able-bodied  man  is  at  the  call  of  the 
Government,  for  as  there  is  no  limit  to  the  necessity  in  making  war,  there 
can  be  no  limit  to  the  force  to  be  used  to  meet  it.  Therefore,  if  the  emer- 
gency requires  it,  the  entire  military  force  of  the  nation  may  be  called  into 
service.  But  the  power  to  carry  on  war,  and  to  call  the  requisite  force  in- 
to service,  inherently  carries  with  it  the  power  to  coerce  or  draft.  A  na- 
tion, without  the  power  to  draw  forces  into  the  field,  would  not  in  fact 
possess  the  power  to  carry  on  war.  The  power  of  war,  without  the  essen- 
tial means,  is  really  no  power;  it  is  a  solecism.  Voluntary  enlistment  is 
founded  in  contract.  A  power  to  command  differs  essentially  from  a  power 
to  contract.  The  former  flows  from  authority;  the  latter  from  assent. 
The  power  to  command  implies  a  duty  to  obey,  but  the  essential  element 
of  contract  is  freedom  to  assent  or  dissent.  It  is  clear,  therefore,  that  the 
power  to  make  war,  without  the  power  to  command  troops  into  the  field, 
is  impotent ;  in  point  of  fact  is  no  governmental  power,  because  it  lacks 
the  authority  to  execute  itself.  Kneedler  v.  Lane,  45  Penn.  238 ;  s.  C.  3 
•Grant,  465. 


88  CONSTITUTION    OF    THE    UNITED    STATES. 

An  act  of  Congress  emancipating  the  slaves  of  those  who  aid  in  a  re- 
bellion is  valid.  Bure  v.  Parker,  63  N.  C.  131;  Jacoway  z/.  Denton,  25 
Ark.  625. 

The  power  is  not  limited  to  victories  in  the  field  and  the  dispersion  of 
the  insurgent  forces.  It  carries  with  it  inherently  the  power  to  guard 
against  the  immediate  renewal  of  the  conflict,  and  to  remedy  the  evils 
which  have  arisen  from  its  rise  and  progress.  Stewart  v.  Kahn,  1 1  WalL 
493  ;  White  v.  Hart;  13  Wall.  646;  S.  C.  39  Geo.  306. 

When  the  United  States  subdues  a  rebellious  State,  it  has  the  right  to 
determine  and  fix  the  conditions  of  returning  peace.  Jacoway  z/.  Denton, 
25  Ark.  625  ;  Shorter  v.  Cobb,  39  Geo.  285. 

Congress  may  pass  an  act  suspending  the  statute  of  limitations  during" 
the  existence  of  a  rebellion.  Stewart  v.  Kahn,  1 1  Wall.  493. 

The  genius  and  character  of  our  institutions  are  peaceful,  and  the 
power  to  declare  war  was  not  conferred  upon  Congress  for  the  purpose  of 
aggression  or  aggrandisement,  but  to  enable  the  General  Government  to- 
vindicate  by  arms,  if  it  should  become  necessary,  its  own  rights  and  the 
rights  of  its  citizens.  A  war,  therefore,  declared  by  Congress  can  never  be 
presumed  to  be  waged  for  the  purpose  of  conquest  or  the  acquisition  of 
territory,  nor  does  the  law  declaring  the  war  imply  an  authority  to  the 
president  to  enlarge  the  limits  of  the  United  States  by  subjugating  the 
enemy's  country.  Fleming  v.  Page,  9  How.  603. 

Congress  alone  has  the  power  to  confiscate  the  property  of  an  enemy, 
and  debts  due  to  an  enemy.  Brown  v.  U.  S.  8  Cranch,  1 10 ;  Britton  v~ 
Butler,  9  Blatch.  456. 

A  declaration  of  war  does  not  of  itself  enact  a  confiscation  of  the  prop- 
erty of  the  enemy  within  the  territory  of  the  belligerent.  Brown  v.  U.  S. 
8  Cranch,  no. 

The  power  to  make  rules  concerning  captures  on  land  and  water  ex- 
tends to  captures  within  the  United  States  as  well  as  to  those  that  are 
exterritorial,  and  is  an  independent  substantive  power  not  included  in  that 
of  declaring  war.  Brown  v.  U.  S.  8  Cranch,  no. 

Congress  may  impose  such  conditions  upon  commercial  intercourse 
with  an  enemy  in  time  of  war  as  it  sees  fit,  and  make  a  payment  for  a 
license  a  part  of  the  conditions.  Hamilton  v.  Dillin,  21  Wall.  74. 

Raise  Annie*. 

(m)  The  power  to  "  raise  and  support  armies  "  must  not  be  confounded 
with  that  given  over  the  militia  of  the  country.  Unlike  that  it  is  unre- 
stricted, unless  it  be  considered  as  a  restriction  that  appropriations  of 


RAISE    ARMIES.  89 

money  to  the  use  of  raising  and  supporting  armies  are  forbidden  for  a 
longer  term  than  two  years.  In  one  sense  this  is  a  practical  restriction. 
Without  appropriations  no  army  can  be  maintained,  and  the  limited  period 
for  which  appropriations  can  be  made  enables  the  people  to  pass  judgment 
upon  the  maintenance,  and  even  existence,  of  the  army  every  two  years, 
and  in  every  new  Congress.  But  in  this  clause  no  limitation  is  imposed 
other  than  this  indirect  one,  either  upon  the  magnitude  of  the  force  which 
Congress  is  empowered  to  raise,  or  upon  the  uses  for  which  it  may  be  em- 
ployed, or  upon  the  mode  in  which  the  army  may  be  raised.  Kneedler  v. 
Lane,  45  Penn.  238 ;  S.  C.  3  Grant,  465. 

Congress  may  raise  a  military  force  by  compulsory  draft  as  well  as  vol- 
untary enlistment.  Kneedler  v.  Lane,  45  Penn.  238;  S.  C.  3  Grant,  465; 
In  re  Griner,  23  Wis.  423. 

Congress  may  enact  that  a  person  shall  be  deemed  in  the  military  serv- 
ice from  the  time  of  the  draft.  Kneedler  v.  Lane,  45  Penn.  238  ;  S.  C.  3 
Grant.  465. 

In  authorizing  a  national  conscription  by  the  National  Government,  the 
Constitution  so  far  forth  ignores  the  State  governments  entirely.  With  the 
action  of  the  General  Government  they  have  legitimately  nothing  to  do.  If 
they  attempt  to  aid  they  are  wholly  volunteers.  Booth  v.  Woodbury,  32 
Conn.  1 1 8. 

Congress  has  power  to  make  and  authorize  such  orders  and  regulations 
as  may  be  necessary  to  prevent  those  who  are  liable  by  law  to  military 
service  from  evading  that  duty.  Allen  v.  Colby,  45  N.  H.  544. 

The  power  to  raise  and  support  armies  is  an  exclusive  power  in  Con- 
gress. Ferguson  v.  Landram,  I  Bush.  548. 

The  militia  of  the  States  is  also  that  of  the  General  Government.  It  is 
the  whole  able-bodied  population  capable  of  bearing  arms,  whether  organ- 
ized or  not.  It  is  the  material,  and  the  only  material  contemplated  by  the 
Constitution,  out  of  which  the  armies  of  the  Federal  Government  are  to 
be  raised.  Whether  gathered  by  coercion  or  enlistment,  they  are  equally 
taken  out  of  those  who  form  a  part  of  the  militia  of  the  States.  The  rights 
of  the  States  can  not  be  affected  by  the  mode  of  taking.  It  is  clear  that  the 
States  hold  their  power  over  the  militia  subordinate  to  the  power  of  Con- 
gress to  raise  armies  out  of  the  population  that  constitutes  it.  Kneedler  z/. 
•Lane,  45  Penn.  238  ;  S.  C.  3  Grant,  465. 

Congress  has  the  power  to  enlist  minors  into  the  naval  service.  U.  S. 
v.  Bainbridge,  I  Mason,  71  ;  Comm.  v.  Murray,  4  Binn.  487. 

Where  an  act  of  Congress  to  provide  for  a  draft  of  men  into  the  army 
also  allows  of  the  acceptance  of  volunteers,  a  State  may  pass  a  law  giving 
a  bounty  to  those  who  volunteer.  State  v.  Demarest,  32  N.  J.  528 ;  Taylor 


90  CONSTITUTION    OF    THE    UNITED    STATES. 

-z/.  Thompson,  42  Geo.  9 ;  Coffman  v.  Knightly,  24  Ind.  509 ;  Board  v. 
Bearse,  25  Ind.  no;  Wilson  v.  Burkman,  13  Minn.  441  ;  Winchester  z/. 
Corinna,  55  Me.  9;  Speer  v.  Directors,  50  Penn.  150;  Booth  v.  Woodbury, 
32  Conn.  118;  Comers.  Folsom,  13  Minn.  219;  Ahl  v.  Gleim,  52  Penn. 
432;  State  v.  Jackson,  31  N.  J.  189  ;  contra,  Ferguson  v.  Landram,  i  Bush. 
.548. 

Military  Regulations. 

(n)  Congress  has  the  power  to  provide  for  the  trial  and  punishment  of 
military  and  naval  offenses  by  court  martial,  in  the  manner  practiced  by 
•civilized  nations,  and  the  power  to  do  so  is  given  without  any  connection  be- 
tween it  and  the  judicial  power  The  two  powers  are  entirely  independent 
of  each  other.  Dynes  v.  Hoover,  20  How.  65  ;  In  re  Robert  D.  Bogart,  2 
Saw.  396. 

Militia. 

(p)  When  it  is  said  that  Congress  shall  have  the  power  to  call  forth  the 
militia  for  three  purposes,  it  is  clear  that  it  is  not  a  call  by  the  States  of 
their  own  militia.  Kneedler  v.  Lane,  45  Penn.  238  ;  S.  C.  3  Grant,  465. 

« 

The  power  to  call  the  militia  into  service  is  limited  by  express  terms. 

It  reaches  only  three  cases.  The  call  may  be  made  "  to  execute  the  laws 
of  the  Union,  to  suppress  insurrections,  and  to  repel  invasions,"  and  for  no 
other  uses.  The  militia  can  not  be  summoned  for  the  invasion  of  a  country 
without  the  limits  of  the  United  States.  They  can  not  be  employed  there- 
fore to  execute  treaties  of  offensive  alliance,  nor  in  any  case  where  military 
power  is  needed  abroad  to  enforce  rights  necessarily  sought  in  foreign 
lands.  Kneedler  v.  Lane,  45  Penn.  238;  S.  C.  3  Grant,  465,  523. 

Congress  may  lawfully  provide  for  cases  of  imminent  danger  of  in- 
vasion, as  well  as  for  cases  where  an  invasion  has  actually  taken  place,  for 
the  power  to  provide  for  repelling  invasions  includes  the  power  to  provide 
against  the  attempt  and  danger  of  invasion,  as  the  necessary  and  proper 
means  to  effectuate  the  object.  One  of  the  best  means  to  repel  invasion 
is  to  provide  the  requisite  force  for  action  before  the  invader  himself  has 
reached  the  soil.  Martin  v.  Mott,  12  Wheat.  19. 

By  virtue  of  this  power  Congress  may  make  laws  to  enforce  the  call ; 
may  inflict  penalties  for  disobedience,  and  erect  courts  for  trial  of  offenders. 
Comm.  v.  Irish,  3  S.  &  R.  176,  note. 

Congress  may  by  law  fix  the  period  at  which  the  militia,  called  forth  by ' 
the  president,  enter  into  the  service  of  the  United  States,  and  change  their 
character  from  State  to  national  militia.  This  is  included  in  the  more  ex- 
tensive powers  of  calling  forth  the  militia,  organizing,  arming,  disciplining 
-and  governing  them.  Houston  v.  Moore,  5  Wheat.  I  ;  S.  C.  3  S.  &  R.  169. 

The  authority  to  call  forth  the  militia  to  execute  the  laws  of  the  Union, 


GOVERNMENT    OF    MILITIA.  9! 

suppress  insurrections  and  repel  invasions  implies  no  prohibition  against 
employing  the  army  and  navy  for  such  purposes ;  nor  does  it  imply  that  the 
militia  can  not  be  used  for  suppressing  a  rebellion  as  well  as  a  mere  insur- 
rection. Metropolitan  Bank  v.  Van  Dyck,  27  N.Y.  400  ;  Kneedler  v.  Lane, 
45  Penn.  238  ;  s.  C.  3  Grant,  465  ;  Texas  v.  White,  7  Wall.  700. 

Instead  of  the  power  to  call  forth  the  militia  being  in  exclusion  of  any 
of  the  preceding  grants  of  the  power  of  war,  or  operating  as  an  exception 
or  proviso,  it  is  a  continuation  of  the  enumeration  of  powers,  and  is  an  ad- 
ditional grant  subsidiary  to  the  former,  as  its  place  in  the  section,  its  terms, 
its  design  and  the  subject-matter  all  import.  While  the  framers  of  the 
Constitution  intended  that  the  nation  should  possess  the  primary  and  essen- 
tial means  of  self-preservation,  in  its  fullest  extent,  by  the  power  to  declare 
war,  raise  armies  and  maintain  navies,  and  provide  for  the  common  defense ; 
they  also  foresaw,  through  the  genius  of  the  people,  the  nature  of  the  Gov- 
ernment as  a  representative  democracy,  and  the  force  of  other  powers  and 
limitations  operating,  that  it  would  be  unlikely  that  a  large  standing  army 
would  always  be  on  foot,'and  the  nation  thereby  ready  for  every  emergency  : 
hence  the  power  to  call  out  the  militia  in  the  three  cases  was  added.  Ad- 
dition is  not  exclusion.  Kneedler  v.  Lane,  45  Penn.  238 ;  S.  C.  3  Grant, 
465- 

A  State  law  providing  for  the  punishment  of  a  person  who  neglects  to 
obey  an  order  calling  forth  the  militia  is  valid.  Houston  z/.  Moore,  5  Wheat, 
i ;  S.  C.  3  S.  &  R.  169. 


Government  of  Militia. 

(/)  There  is  a  distinction  between  these  two  powers.  Calling  the 
militia  forth  is  one  thing,  governing  them  when  they  are  in  actual  service 
is  another.  Houston  v.  Moore,  3  S.  &  R.  169;  S.  C.  5  Wheat,  i. 

So  long  as  the  militia  are  acting  under  the  military  jurisdiction  of  the 
State  to  which  they  belong,  the  powers  over  them  are  concurrent  in  the 
General  and  State  Governments.  Congress  has  power  to  provide  for  or- 
ganizing, arming  and  disciplining  them ;  and  this  power  being  unlimited, 
except  in  the  two  particulars  of  officering  and  training  them  according  to 
the  discipline  to  be  prescribed  by  Congress,  it  may  be  exercised  to  any 
extent  that  may  be  deemed  necessary  by  Congress.  But  as  State  militia, 
the  power  of  the  State  governments  to  legislate  on  the  same  subject  having 
existed  prior  to  the  formation  of  the  Constitution,  and  not  having  been  pro- 
hibited by  that  instrument,  it  remains  with  the  States,  subordinate  never- 
theless to  the  paramount  law  of  the  General  Government  operating  upon 
the  same  subject.  Houston  v.  Moore,  5  Wheat,  i ;  s.  c.  3  S.  &  R.  169. 

The  power  of  the  several  States  to  govern  their  own  militia  is  not  derived 
from  the  Constitution.  They  had  it  before  the  adoption  of  the  Constitution, 


92  CONSTITUTION    OF    THE    UNITED    STATES. 

and  possess  it  still,  except  where  it  has  been  restricted  or  yielded  to  the 
United  States.     Houston  v.  Moore,  3  S.  &  R.  169 ;  S.  C.  5  Wheat,  i. 

After  a  detachment  of  the  militia  has  been  called  forth,  and  has  entered 
into  the  service  of  the  United  States,  the  authority  of  the  General  Govern- 
ment over  such  detachment  is  exclusive.  Over  the  national  militia  the 
State  governments  never  had  or  could  have  jurisdiction.  None  such  is  con- 
ferred by  the  Constitution,  consequently  none  such  can  exist.  Houston  v~ 
Moore,  5  Wheat,  i ;  S.  C.  3  S.  &  R.  169. 

When  a  State  law  is  to  operate  on  the  militia  betore  they  are  in  actual 
service,  it  may  not  only  not  interfere  with  the  law  of  Congress,  but  have  a 
powerful  effect  in  aid  of  it.  Houston  v.  Moore,  3  S.  &  R.  169;  S.  C.  5 
Wheat,  i. 

'  "  Organizing  "  obviously  includes  the  power  of  determining  who  shall 
compose  the  body  known  as  the  militia.  The  general  principle  is  that  a 
militia  shall  consist  of  the  able-bodied  male  citizens,  but  this  description  is 
too  vague  and  indefinite  to  be  laid  down  as  a  practical  rule.  It  requires  a 
provision  of  positive  law  to  ascertain  the  exact  age  which  shall  be  deemed 
neither  too  young  nor  too  old  to  come  within  the  description.  The  power 
is  given  to  the  General  Government  to  fix  the  age  precisely,  and  thereby  to 
put  an  end  to  doubt  and  uncertainty.  Opinions  of  Justices,  80  Mass.  614. 

The  President  may  exercise  his  command  of  the  militia  by  the  officers 
of  the  militia  duly  appointed.  There  is  no  provision  of  the  Constitution  au- 
thorizing any  officer  of  the  army  of  the  United  States  to  command  the  militia. 
Opinions  of  Justices,  80  Mass.  548. 

District  of  Columbia. 

(g)  In  legislating  for  the  District  of  Columbia,  Congress  is  bound  by 
the  prohibitions  of  the  Constitution.  U.  S.  v.  More,  3  Cranch,  160,  note. 

These  terms  are  not  limited  by  the  principle  that  representation  is  in- 
separable from  taxation.  Loughborough  v.  Blake,  5  Wheat.  317. 

,  In  legislating  for  the  District  of  Columbia,  Congress  necessarily  preserves 
the  character  of  the  legislature  of  the  Union,  for  it  is  in  that  character  alone 
that  the  Constitution  confers  on  it  the  power  of  exclusive  legislation.  Cohens 
•V.  Virginia,  6  Wheat.  264. 

Congress  possesses  the  power  to  lay  and  collect  direct  taxes  within  the 
District  of  Columbia  in  proportion  to  the  census  directed  to  be  taken  by 
the  Constitution.  Loughborough  v.  Blake,  5  Wheat.  317. 

Congress  may  confer  upon  the  city  of  Washington  authority  to  assess 
upon  the  adjacent  proprietors  of  lots,  the  expense  of  repairing  streets  with 
a  new  and  different  pavement,  or  repairing  an  old  one.  Willard  v.  Pres- 
bury,  14  Wall.  676. 


FORTS.  93 

Congress  possesses  the  power  to  construct  an  aqueduct  for  the  use  of 
the  District  of  Columbia,  which  shall,  if  necessary,  draw  its  supply  of 
water  from  within  the  limits  of  a  State,  and  use  and  occupy  land  for  that 
purpose  in  the  State,  with  its  permission  and  consent.  Reddall  v.  Bryan, 
14  Md.  444. 

Fort§. 

(r)  It  seems  apparent  that  the  members  of  the  convention  who  formed 
the  Constitution,  contemplated  that  places  for  forts,  magazines,  arsenals, 
dockyards  and  other  buildings  connected  therewith,  would  be  required  to  be 
purchased  from  individuals  in  the  several  States  where  their  selection  and 
erection  might  be  deemed  necessary,  and  that  it  was  still  more  important 
to  give  exclusive  legislation  over  the  places  ceded  for  public  convenience 
and  safety  ;  but  still  the  consent  of  the  State  legislature  was  required  be- 
fore such  purchases  could  be  made  of  individuals  and  the  places  so  used. 
May  it  not  also  have  been  intended  that  forts  and  permanent  garrisons 
should  not  be  thus  erected  without  the  consent  of  the  State  ?  This  infer- 
ence would  be  warranted  by  the  supposition  that  the  States  would  view 
with  natural  jealousy  the  collection  of  numerous  armed  forces  stationed 
among  them  in  permanent  works,  established  without  their  consent  and 
beyond  their  control.  McConnell  v.  Wilcox,  2  111.  344. 

The  United  States  can  acquire  the  right  of  exclusive  legislation  within 
the  territorial  limits  of  a  State,  only  in  the  mode  pointed  out  in  the  Consti- 
tution. The  essence  of  the  provision  is,  that  the  State  shall  freely  cede  the 
particular  place  to  the  United  States  for  one  of  the  specific  and  enumerated 
objects.  The  jurisdiction  can  not  be  acquired  tortiously  or  by  disseizin  of 
the  State ;  much  less  can  it  be  acquired  by  mere  occupancy  with  the  im- 
plied or  tacit  consent  of  the  State,  when  such  occupancy  is  for  the  purpose 
of  protection.  People  v.  Godfrey,  17  Johns.  225;  Clay  v.  State,  4  Kans. 
49  ;  U.  S.  v.  Tierney,  i  Bond,  571. 

Ratification  by  the  State  in  addition  to  purchase  from  the  owner,  is 
necessary  to  vest  full  sovereignty  over  land  in  the  United  States.  U.  S. 
*v.  Cornell,  2  Mason,  60 ;  Comm.  V.  Young,  Brightley,  302  ;  U.  S.  v.  Tierney, 
i  Bond,  571. 

An  act  of  a  State  legislature  will  not  vest  the  jurisdiction  in  the  United 
States,  unless  there  is  some  act  on  the  part  of  the  latter  to  show  an 
acceptance  of  the  grant.  People  v.  Lent,  2  Wheel.  Cr.  Cas.  548. 

Congress  may  relinquish  jurisdiction  over  territory  acquired  from  a 
State,  for  such  jurisdiction  is  not  an  original  and  inherent  power,  but 
a  secondary  and  acquired  power.  Renner  v.  Bennett,  21  Ohio  St.  431. 

When  land  has  been  purchased  by  the  United  States  for  military  or 
other  purposes,  it  can  not  be  sold  without  the  special  authority  of  Con- 
gress. In  such  cases  the  purchase  is  made  for  a  specific  object,  and  being 


94  CONSTITUTION    OF    THE    UNITED    STATES. 

purchased  with  the  consent  of  the  State  under  the  Constitution,  there  is  a 
cession  of  jurisdiction  as  well  as  of  property.  To  transfer  property  so  ac- 
quired, and  relinquish  the  jurisdiction,  the  authority  of  Congress  is  indis- 
pensable. U.  S.  v.  Railroad  Bridge  Co.  6  McLean,  517. 

Congress  may  own  and  use  property  within  the  limits  of  a  State,without 
acquiring  jurisdiction  over  the  territory.  Renner  v.  Bennett,  21  Ohio- 
St.  431- 

If  the  United  States  merely  acquires  land  in  a  State  from  the  owner,  it 
holds  the  land  in  subordination  to  all  the  municipal  regulations  of  the 
State.  Comm.  v.  Young,  Brightly,  302. 

The  power  of  exclusive  legislation  does  not  extend  to  land  rented  by 
the  Government  for  a  temporary  purpose.  U.  S.  v.  Tierney,  I  Bond.  571. 

Where  jurisdiction  over  territory  has  been  acquired  for  a  temporary 
purpose,  the  consent  of  the  State  is  not  necessary  to  revest  the  jurisdiction 
when  it  is  abandoned  by  the  Government.  Renner  v.  Bennett,  21  Ohio 
St.  431- 

Congress  may  relinquish  jurisdiction  over  territory  acquired  from  a 
State  without  abandoning  the  use  of  the  property.  Renner  v.  Bennett,  21 
Ohio  St.  431. 

A  person  who  resides  on  land  which  has  been  ceded  to  the  United 
States,  is  not  liable  to  taxation  in  the  State  on  account  of  such  residence. 
Webster  v.  Seymour,  8  Vt.  135. 

No  offenses  committed  within  the  limits  of  territory  purchased  with 
the  consent  of  the  State,  can  be  punished  in  the  State  courts.  Comm.  v. 
Clary,  8  Mass.  72 ;  U.  S.  v.  Ames,  i  W.  &  M.  76. 

When  a  purchase  of  land  for  any  of  the  enumerated  purposes  is  made 
by  the  national  government,  and  the  State  has  given  its  consent  to  the  pur- 
chase, the  land  so  purchased  by  the  very  terms  of  the  Constitution  ipso 
facto,  falls  within  the  exclusive  legislation  of  Congress,  and  the  State  juris- 
diction is  completely  ousted.  U.  S.  v.  Cornell,  2  Mason,  60 ;  s.  C.  2  Ma- 
son, 91. 

The  Government  has  exclusive  jurisdiction  over  the  ceded  territory,  al- 
though the  act  of  cession  provides  that  civil  and  criminal  process  issued 
under  the  authority  of  the  State  may  be  executed  within  the  ceded  lands. 
Mitchell  v.  Tibbetts,  34  Mass.  298 ;  U.  S.  v.  Cornell,  2  Mason,  60  ;  S.  C.  2 
Mason,  91 ;  U.  S.  v.  Davis,  5  Mason,  356  ;  U.  S.  v.  Travers,  2  Wheel.  Cr. 
Cas.  490  ;  Comm.  v.  Clary,  8  Mass.  72. 

A  State  retains  jurisdiction  over  lands  ceded  to  the  United  States  until 
the  latter  legislates  for  it.  People  v.  Lent,  2  Wheel.  Cr.  Cas.  548. 


NECESSARY    LAWS.  95 

Congress  has  no  exclusive  jurisdiction  over  land  in  a  State  which  is  pur- 
chased by  a  corporation  created  by  an  act  of  Congress.  In  re  John  O. 
Conner,  37  Wis.  379  ;  contra,  Sinks  v.  Reese,  19  Ohio  St.  306. 


]\Tece§§ary  Laws. 

(s)  This  clause  is  placed  among  the  powers  of  Congress,  not  among  the  ,/•' 
limitations  on  those  powers.    Its  term  purports  to* enlarge,  not  to  diminish, 
the  powers  vested  in  the  Government.      It  purports  to  be  an  additional 
power,  not  a  restriction  on  those  already  granted.      M'Culloch  v.  State,  4. 
Wheat.  316. 

This  limitation  on  the  means  which  may  be  used  is  not  extended  to  the 
powers  which  are  conferred.  Gibbons  z/.  Ogden,  9  Wheat.  I  ;  S.  C.  17 
Johns.  488;  4  Johns.  Ch.  150. 

If  the  clause  does  not  enlarge  it  can  not  be  construed  to  restrain  the 
powers  of  Congress,  or  to  impair  the  right  of  the  legislature  to  exercise  its 
best  judgment  in  the  selection  of  measures  to  carry  into  execution  the  con- 
stitutional powers  of  the  Government.  If  no  other  motive  for  its  insertion 
can  be  suggested,  a  sufficient  one  is  found  in  the  desire  to  remove  all 
doubts  respecting  the  right  to  legislate  on  that  vast  mass  of  incidental  "^ 
powers  which  must  be  involved  in  the  Constitution.  A  sound  construction 
of  the  Constitution  must  therefore  allow  to  the  national  legislature  that  dis- 
cretion with  .respect  to  the  means  by  which  the  powers  it  confers  are  to  be 
carried  into  execution,  which  will  enable  that  body  to  perform  the  high 
duties  assigned  to  it  in  the  manner  most  beneficial  to  the  people.  Let  the 
end  be  legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consist  with  the  letter  and  spirit  of  the  Con- 
stitution, are  constitutional.  M'Culloch  v.  State,  4  Wheat.  316;  Comm.  z/. 
Morrison,  2  A.  K.  Marsh,  75  ;  U.  S.  v.  Marigold,  9  How.  560;  Mitchell  v. 
Steelman,  8  Cal.  363  ;  U.  S.  v.  Fisher,  2  Cranch,  358  ;  Dickey  v.  Turnpike 
Co.  7  Dana,  119.  • 

It  is  essential  to  just  construction  that  many  words  which  import  some- 
thing excessive,  should  be  understood  in  a  more  mitigated  sense  ;  in  that 
sense  which  common  usage  justifies.  The  word  "  necessary"  is  of  this 
description.  It  has  not  a  fixed  character  peculiar  to  itself.  It  admits  of 
all  degrees  of  comparison,  and  is  often  connected  with  other  words  which  L 
increase  or  diminish  the  impression  the  mind  receives  of  the  urgency  it  im- 
ports. A  thing  may  be  necessary,  very  necessary,  absolutely  or  indispen- 
sably necessary.  To  no  mind  would  the  same  idea  be  conveyed  by  these 
several  phrases.  In  its  construction  the  subject,  the  context,  and  the  in- 
tention of  the  person  using  it  are  all  to  be  taken  into  view.  M'Culloch  z/. 
State,  4  Wheat.  316;  Comm.  v.  Morrison,  2  A.  K.  Marsh.  75. 


96  CONSTITUTION    OF    THE    UNITED    STATES.  . 

It  was  impossible  to  enumerate  all  cases  of  necessity,  and,  therefore,  it 
was  left  to  Congress  to  judge  of  them,  and  'their  judgment  must  govern 
unless  it  should  be  so  exercised  as  to  be  manifestly  and  flagrantly  in  breach 
of  the  Constitution.  If  a  law  is  evidently  useful  in  carrying  into  effect  one 
of  the  powers  vested  in  Congress,  the  court  will  not  be  over  critical  in  in- 
quiring into  the  degree  of  necessity.  Comm.  v.  Lewis,  6  Binn.  266. 

Congress  is  not  authorized  to  enact  laws,  even  in  furtherance  of  a  legit- 
imate end,  merely  because  they  are  useful,  or  because  they  make  the  Gov- 
ernment stronger.  There  must  be  some  relation  between  the  means  and 
the  end ;  some  adaptedness  or  appropriateness  of  the  laws  to  carry  into 
execution  the  powers  created  by  the  Constitution.  Legal  Tender  Cases, 
12  Wall.  457. 

The  relationship  between  the  means  and  the  end  need  not  be  direct 
and  immediate.  Legal  Tender  Cases,  12  Wall.  457;  contra,  U.  S.  v. 
Bailey,  i  McLean,  234. 

It  is  not  for  the  judiciary  to  determine  whether  a  law  of  Congress  has 
a  direct  relation  as  a  means  to  the  execution  of  an  enumerated  power.  If, 
in  any  sense  or  in  any  degree,  the  means  employed  are  appropriate  or  con- 
ducive to  the  exercise  of  the  power — if  there  is  any  possible  relation  of  the 
means  to  the  end — the  judiciary  is  limited  to  the  inquiry  whether  the  use  of 
such  means  is  repugnant  to  any  provision  of  the  Constitution.  Metropoli- 
tan Bank  V.  Van  Dyck,  27  N.  Y.  400. 

The  judicial  department  of  the  Government  can  not  declare  that  be- 
cause to  the  judicial  mind  Congress,  in  the  execution  of  a' specified  power, 
seems  to  have  employed  means  not  having  a  direct  but  a  circuitous,  remote 
and  indirect  relation  to  the  end  of  such  power,  its  act  is  constitutionally 
invalid.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

In  the  exercise  of  its  powers  and  functions  the  Government  must  be 
allowed  a  wide  discretion  in  the  means  to  be  employed.  Occasions  may 
arise  for  the,use  of  means  to  accomplish  the  recognized  objects  of  the  Con- 
stitution, different  from  what  its  founders  could  have  anticipated,  and  per- 
haps contrary  to  their  expectations,  and  in  such  event  the  question  of 
constitutional  power  is  to  be  decided  by  a  fair  construction  of  the  Consti- 
tution itself,  and  by  the  appropriateness  of  the  proposed  means  to  the  end 
tested  rather  by  the  facts  of  the  day  than  by  the  judgment  of  the  past  or  its 
history.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

It  is  not  essential  that  the  statute  shall  be  indispensably  necessary  to 
give  effect  to  a  specified  power.  Where  various  systems  might  be  adopted 
for  that  purpose,  it  might  be  said  with  respect  to  each,  that  it  was  not 
necessary  because  the  end  might  be  attained  by  other  means.  Congress 
must  possess  the  choice  of  means,  and  must  be  empowered  to  use  any 


NECESSARY    LAWS.  97 

means  which  are  in  fact  conducive  to  the  exercise  of  a  power  granted  by 
the  Constitution.     U.  S.  v.  Fisher,  2  Cranch,  358. 

» 

Construction  for  the  purpose  of  conferring  a  power  should  be  resorted 
to  with  great  caution,  and  only  for  the  strongest  and  most  persuasive 
reasons.  Ex  parte  Beavins,  33  N.  H.  89. 

No  trace  is  to  be  found  in  the  Constitution  of  an  intention  to  create  a 
dependence  of  the  Federal  Government  on  the  governments  of  the  States, 
for  the  execution  of  the  great  ppwers  assigned  to  it.  Its  means  are  ade- 
quate to  its  ends,  and  on  those  means  alone  was  it  expected  to  rely  for  the 
accomplishment  of  its  ends.  M'Culloch  v.  State,  4  Wheat.  316. 

Where  the  means  for  the  exercise  of  a  granted  power  or  the  perform- 
ance of  an  enjoined  duty  are  given,  no  other  or  different  means  can  be 
implied,  either  on  account  of  convenience  or  as  being  more  effectual.  Ex 
parte  Beavins,  33  N.  H.  89. 

A  statute  giving  priority  to  the  Government  over  the  general  creditors 
in  cases  of  insolvency,  is  valid.  U.  S.  v.  Fisher,  2  Cranch,  358. 

Congress  may  fix  the  rate  of  interest  which  a  national  bank  may-  take 
upon  a  loan  of  money,  and  determine  the  penalty  to  be  imposed  for  taking; 
a  greater  rate.  Central  Bank  v.  Pratt,  1 1 5  Mass.  439. 

Congress  may  make  or  authorize  contracts  with  individuals  for  services 
to  the  Government ;  grant  aids  by  money  or  land  in  preparation  for  and  in. 
the  performance  of  such  services,  make  any  stipulations  and  conditions 
not  contrary  to  the  Constitution,  and  in  its  discretion  exempt  the  agencies 
employed  in  such  services  from  any  State  taxation  which  will  really  prevent 
or  impede  the  performance  of  them.  Thomson  v.  Pacific  Railroad,  9. 
Wall.  579. 

The  Government  is  to  pay  the  debt  of  the  Union,  and  consequently  has 
a  right  to  make  remittances  by  bills  or  otherwise,  and  to  take  those  pre-  ' 
cautions  which  will  render  the  transaction  safe.    U.  S.  v.  Fisher,  2  Cranch, 
358. 

Congress  may  use  all  known  and  appropriate  means  of  effectually  col- 
lecting and  disbursing  the  revenue,  unless  such  means  are  forbidden  ia 
some  other  part  of  the  Constitution.  The  power  is  not  exhausted  by  the 
receipt  of  the  money  by  the  collector.  The  purpose  of  the  power  to  col- 
lect and  disburse  the  revenue,  is  to  raise  money  and  use  it  in  the  payment 
of  the  debts  of  the  Government,  and  whoever  may  have  possessioa 
of  the  public  money  until  it  is  actually  disbursed,  the  power  to  use 
those  known  and  appropriate  means  continues.  Murray  v.  Hoboken  Co. 
1 8  How.  272. 

If  it  is  necessary  to  render  treasury  notes  effectual  for  the  purpose  for 

7 


98  CONSTITUTION    OF    THE    UNITED    STATES. 

which  they  are  issued — that  they  should  be  made  a  legal  tender  in  pay- 
ment of  all  debts,  Congress  may  in  its  discretion  adopt  such  means  to 
carry  out«a  conceded  and  delegated  power.  Metropolitan  Bank  v.  Van 
Dyck,  27  N.  Y.  400. 

Congress  has  the  power  to  provide  that  in  case  of  the  death  of  a  col- 
lector without  leaving  estate  sufficient  for  the  payment  of  all  his  debts,  the 
United  States  shall  be  first  paid.  Comm.  v.  Lewis,  6  Binn.  266. 

The  power  of  creating  a  corporation,  though  appertaining  to  sover- 
eignty, is  not  like  the  power  of  making  war,  or  levying  taxes,  or  regulating 
commerce,  a  great  substantive  and  independent  power  which  can  not  be 
implied  as  incidental  to  other  powers  or  used  as  a  means  of  executing 
them.  It  is  never  the  end  for  which  other  powers  are  exercised,  but  a 
means  by  which  other  objects  are  accomplished.  The  power  of  creating  a 
corporation  is  never  used  for  its  own  sake,  but  for  the  purpose  of  effecting 
something  else.  It  may,  therefore,  pass  as  incidental  to  those  powers  which 
are  expressly  given  if  it  be  a  direct  mode  of  executing  them.  M'Culloch 
V.  State,  4  Wheat.  316;  Magill  v.  Parsons,  4  Conn.  317;  contra,  Comm.  v. 
Morrison,  2  A.  K.  Marsh,  75. 

Congress  has  the  power  to  make  any  provisions  which  tend  to  promote 
the  efficiency  of  national  banks  in  performing  the  functions  by  which  they 
were  designed  to  serve  the  Government  and  to  protect  them,  not  only  against 
interfering  State  legislation,  but  also  against  suits  or  proceedings  in  State 
courts,  by  which  that  efficiency  would  be  impaired.  Chesapeake  Bank  v. 
First  Nat'l  Bank,  40  Md.  269. 

Congress  has  the .  power  to  prescribe  the  penalty  to  be  incurred  by  a 
national  bank  for  taking  usurious  interest.  Farmers'  National  Bank  v. 
Dearing,  91  U.  S.  29;  contra,  First  Nat'l  Bank  v.  Lamb,  50  N.  Y.  95; 
S.  C.  57  Barb.  429. 

The  power  of  legislating  upon  the  subject  of  the  validity  of  private 
contracts  made  within  the  States,  has  not  been  granted  by  the  Constitution 
to  the  Federal  Government,  but  has  ever  rested  with  the  States.  Each 
one  of  them  according  to  its  own  notions  of  policy,  and  without  regard  to 
the  views  of  the  others,  has  the  right  to  prohibit  and  declare  invalid  within 
its  own  borders  those  contracts  which  it  deems  opposed  to  public  morals 
or  the  welfare  of  its  citizens.  Each  State  had  this  right  before  the  forma- 
tion of  the  Federal  Government,  and  has  never  surrendered  it.  When  the 
people  of  all  the  States  united  in  framing  that  Government,  they  carefully 
defined  its  powers,  reserving  to  each  State  not  merely  its  separate  organi- 
zation, but  its  sovereignty  over  its  domestic  affairs,  granting  to  the  Federal 
Government  only  the  express  powers  enumerated  in  its  written  charter,  to- 
gether with  authority  to  pass  all  laws  necessary  and  proper  for  the  execu- 
tion of  those  enumerated  powers,  and  in  this  form  was  the  Constitution 
ratified  by  the  States.  If,  for  the  execution  of  any  express  power  vested  in 


NECESSARY    LAWS.  99 

the  Federal  Government,  it  should  become  necessary  to  sanction  or  pro- 
hibit a  particular  class  of  contracts  in  opposition  to  the  laws  of  the  State 
where  made,  such  a  measure  would  not  derive  its  validity  from  any  power 
of  Congress  to  legislate  upon  the  subject  of  domestic  contracts,  but  solely 
from  the  relation  of  the  measure  to  the  express  power  in  the  execution  of 
which  it  was  employed,  and  the  existence  of  such  a  relation  is  a  judicial 
question.  In  such  a  case  the  legislation  of  the  State  could  be  made  to 
yield  to  that  of  the  Federal  Government,  only  to  the  extent  to  which  the 
former  constituted  an  obstruction  to  the  accomplishment  of  the  legitimate 
constitutional  end  which  Congress  had  in  view.  First  Nat'l  Bank  v.  Lamb, 
57  Barb.  429  ;  s.  C.  50  N.  Y.  95. 

Congress   has  the   power  to   create,  define  and   punish   crimes   and  * 
offenses  whenever  they  deem  it  necessary  by  law  to  do  so  for  effectuating 
the  objects  of  the  Government.     U.  S.  v.  Worrall,  2  Dall.  384;  U.  S.  v, 
Marigold,  9  How.  560. 

The  power  to  prescribe  an  oath  of  office  is  an  incidental  power. 
Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

The  power  of  punishment  appertains  to  sovereignty,  and  may  be  exer- 
cised  whenever  the  sovereign  has  a  right  to  act  as  incidental  to  his  con- 
stitutional powers.  It  is  a  means  for  carrying  into  execution  all  sovereign 
powers,  and  may  be  used  although  not  indispensably  necessary.  It  is  a 
right  incidental  to  the  power  and  conducive  to  its  beneficial  exercise. 
M'Culloch  v.  State,  4  Wheat.  316. 

If  the  Constitution  guarantees  a  right,  the  National  Government  is 
clothed  with  the  appropriate  authority  and  functions  to  enforce  it.  The 
fundamental  principle  is,  that  where  the  end  is  required  the  means  are 
given ;  and  where  a  duty  is  enjoined,  the  ability  to  perform  it  is  contem- 
plated to  exist  on  the  part  of  the  functionaries  to  whom  it  is  intrusted. 
Prigg  v.  Comm.  16  Pet.  539;  U.  S.  v.  Cruikshank,  I  Woods,  308  ;  s.  C.  91 
U.  S.  542. 

The  power  of  Congress  to  pass  laws  to  enforce  rights  conferred  by  the 
Constitution,  is  not  limited  to  the  express  powers  of  legislation  enumerated 
in  the  Constitution.  The  powers  which  are  necessary  and  proper  as 
means  to  carry  into  effect  rights  expressly  given  and  duties  expressly  en- 
joined, are  always  implied.  The  end  being  given,  the  means  to  accomplish 
it  are  given  also  by  a  just  and  necessary  implication.  Prigg  v.  Comm.  16 
Pet-  539;  Henry  v.  Lowell,  16  Barb.  268. 

The  method  of  enforcement,  or  the  legislation  appropriate  to  that  end, 
will  depend  upon  the  character  of  the  right  conferred.  It  may  be  by  the 
establishment  of  regulations  for  attaining  the  object  of  the  right,  the  im- 
position of  penalties  for  its  violation,  or  the  institution  of  judicial  procedure 
for  its  vindication  when  assailed,  or  when  ignored  by  the  State  courts  ;  or 
it  may  be  by  all  of  them  together.  One  method  of  enforcement  may  be 


TOO  CONSTITUTION    OF    THE    UNITED    STATES. 

applicable  to  one  fundamental  right,  and  not  applicable  to  another.     U.  S_ 
v.  Cruikshank,  I  Woods,  308;  S.  C.  91  U.  S.  542. 

The  Government  which  has  a  right  to  do  an  act,  and  has  imposed  on  it 
the  duty  of  performing  that  act,  must,  according  to  the  dictates  of  reason, 
be  allowed  to  select  the  means.  M'Culloch  v.  State,  4  Wheat.  316. 

Those  who  contend  that  the  Government  may  not  select  any  appropriate 
means,  that  one  particular  mode  of  effecting  the  object  is  excepted,  take 
upon  themselves  the  burden  of  establishing  that  exception.  M'Culloch  v. 
State,  4  Wheat.  316. 

*  The  Government  has  the  right  to  employ  freely  every  means  not  pro- 
hibited, necessary  for  its  preservation,  and  for  the  fulfillment  of  its  ac- 
knowledged duties.  Legal  Tender  Cases,  12  Wall.  457. 

(Congress  has  the  power  to  make  laws  for  carrying  into  execution  all  the 
judgments  which  the  judicial  department  has  the  power  to  pronounce. 
Wayman  z/.  Southard,  10  Wheat.  I ;  Bank  v.  Halstead,  10  Wheat.  51. 

Congress  has  the  power  to  regulate  the  proceedings  on  executions,  and 
direct  the  mode  and  manner,  and  out  of  what  property  of  the  debtor  satis- 
faction may  be  obtained.  Bank  v.  Halstead,  10  Wheat.  51. 

The  Constitution  does  not  profess  to  enumerate  the  means  by  which 
the  powers  it  confers  may  be  executed.     The  powers  given  to  the  Govern- 
ment  imply  the  ordinary  means   of    execution.     M'Culloch  v.   State,   4 
.Wheat.  .316. 

Congress  may  delegate  to  the  courts  the  power  of  altering  the  modes  of 
proceedings  in  suits.  Wayman  v.  Southard,  10  Wheat,  i ;  Bank  v.  Hal- 
stead,  10  Wheat.  51. 

If  a  measure  is  appropriate  to  the  execution  of  a  power,  its  necessity 
is  to  be  determined  by  Congress  alone.  Where  a  law  is  not  prohibited, 
but  is  really  calculated  to  effect  any  of  the  objects  intrusted  to  the  Gov- 
ernment, for  the  courts  to  undertake  to  inquire  into  the  degree  of  its  ne- 
cessity would  be  to  pass  the  line  which  circumscribes  the  judicial  depart- 
ment, and  to  tread  on  legislative  ground.  M'Culloch  v.  State,  4  Wheat. 
316 ;  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

When  a  Territory  becomes  a  State,  it  rests  with  Congress  to  declare 
to  what  tribunal  the  record  of  the  Territorial  court  shall  be  transferred, 
and  how  its  judgments  shall  be  carried  into  execution,  or  reviewed  on  ap- 
peal or  writ  of  error.  Hunt  v.  Palao,  4  How.  589. 

Congress  may  prescribe  a  limitation  for  actions  to  recover  damages  for 
acts  done  under  the  authority  of  the  president.  Milligan  v.  Hovey,  3. 
Biss.  13. 


HABEAS    CORPUS.  IOI 


SECTION   IX. 

1.  The  migration  or  importation ,  of/such^p 

as  any  of  the  States  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  year  one  thousand  eight  hundred  and  eight,  but  a 
tax  or  duty  may  be  imposed  on  such  importation,  not 
exceeding  ten  dollars  for  each  person. 

This  clause  does  not  in  its  words  or  meaning  apply  to  State  govern- 
ments. Butler  v.  Hopper,  I  Wash.  C.  C.  499. 

The  power  to  prohibit  the  admission  of  "  all  such  persons,"  includes 
necessarily  the  power  to  admit  them  on  such  conditions  as  Congress  may 
think  proper  to  impose,  and  therefore,  as  a  condition,  Congress  has  the  un- 
limited power  of  taxing  them.  The  whole  power  over  the  subject  belongs 
exclusively  to  Congress,  and  connects  itself  indissolubly  with  the  power  to 
regulate  commerce  with  foreign  nations.  It  therefore  follows  that  passen- 
gers can  never  be  subject  to  State  laws  until  they  become  a  portion  of  the 
population  of  the  State,  temporarily  or  permanently.  Passenger  Cases,  7 
How.  283 ;  S.  c.  45  Mass.  282. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when,  in  cases  of  rebellion  or 
invasion,  the  public  safety  may  require  it. 

The  president  can  not  suspendthe  writ  of  habeas  corpus.  That  is  an 
act  of  legislative  power  which  can  only  be  performed  by  Congress.  Griffin 
"V.  Wilcox,  21  Ind.  370;  in  re  Nicholas  Kemp,  16  Wis.  359 ;  ex  parte  John 
Merryman,  Taney,  246  ;  contra,  ex  parte  Field,  5  Blatch.  63. 

Congress,  in  the  cases  mentioned,  is  the  judge  of  whether  the  public 
safety  does  or  does  not  require  the  suspension  of  the  writ,  and  its  judg- 
ment is  conclusive.  Ex  parte  John  Merryman,  Taney,  246  ;  McCall  z/. 
McDowell,.  I  Deady,  233  ;  S.  C.  I  Abb.  C.  C.  212. 

The  commander  of  a  military  district  can  not  suspend  the  writ  of  habe- 
as corpus.  Johnson  v.  Duncan,  3  Mart.  531  ;  ex  parte  Field,  5  Blatch.  63. 

Congress  has  no  power  to  suspend  the  issuing  of  a  writ  of  habeas  cor- 
pus by  a  State  court.  Griffin  v.  Wilcox,  21  Ind.  370;  Kneedler  v.  Lane, 
45  Penn.  238;  S.  C.  3  Grant,  465. 

A  stipulation  in  a  treaty  prohibiting  the  issuing  of  a  writ  of  habeas  cor-  . 
PUS  would  be  void,  for  the  treaty  making  power  is  not  competent  to  suspend 
the  writ  in  time  of  peace.     Ex  parte  Thomas  Kaine,  10  N.  Y.  Leg.  Obs.  257. 


IO2  CONSTITUTION    OF    THE    UNITED    STATES. 

The'*  language  is,  "the  privilege  of  the  writ  shall  not  be  suspended;"" 
that  is,  t,he,  right  to  the'.writ,  the  privilege  of  having  it  issued  and  the  case 
heard  ajid'jdeten^insd  shall  not  be  suspended.  It  has  no  reference  to  the 
reasonable  delay  that  may  be  occasioned  in  the  disposition  of  such  cases 
by  a  writ  of  review.  Macready  v.  Wilcox,  33  Conn.  321. 

A  statute  authorizing  the  president  during  a  certain  period  to  suspend 
the  writ  of  habeas  corpus  whenever  in  his  judgment  the  public  safety  re- 
quires it,  is  valid ;  for  Congress  does  thereby  exercise  the  discretion  vested 
in  it  to  determine  that  the  emergency  requires  a  suspension.  In  re  Rich- 
ard Oliver,  17  Wis.  68 1  ;  McCall  v.  McDowell,  I  Deady,  233;  S.  C.  I  Abb. 
C.  C.  212. 

The  suspension  of  the  privilege  of  the  writ  is  an  express  permission  and 
direction  from  Congress  to  the  executive  to  arrest  and  imprison  all  persons, 
for  the  time  being,  whom  he  has  reason  to  believe  or  suspect  of  intention 
or  conduct  in  relation  to  the  rebellion  or  invasion,  which  is  or  may  be  dan- 
gerous to  the  common  weal.  McCall  v.  McDowell,  i  Deady,  233 ;  s.  C.  i 
Abb.  C.  C.  212. 

The  suspension  of  the  privilege  of  the  writ  of  habeas  corpus  being  the 
virtual  authorization  of  arrests  without  the  ordinary  legal  cause  or  warrant, 
it  follows  that  such  arrests,  pending  the  suspension  and  when  made  in 
obedience  to  the  order  or  authority  of  the  officer  to  whom  that  power  is 
committed,  are  practically  legal,  and  the  persons  making  them  are  not  lia- 
ble to  an  action  of  damages  therefor.  McCall  v.  McDowell,  I  Deady,  233  ; 
S.  C.  i  Abb.  C.  C.  212. 

Congress  may  provide  that  an  officer  shall  not  be  liable  for  an  arrest 
made  during  the  suspension  of  the  privilege  of  the  writ  of  habeas  corpus^ 
McCall  v.  McDowell,  i  Deady,  233 ;  s.  c.  i  Abb.  C.  C.  212. 

The  privilege  of  the  writ  of  habeas  corpus  is  the  privilege  of  having 
judicial  inquiry  made  into  the  cause  of  imprisonment,  and  a  discharge  if 
the  detention  be  found  to  be  unlawful,  and  a  suspension  thereof  precludes 
all  further  proceedings  on  a  writ  already  issued.  Ex  parte  Fagan,  2 
Sprague,  91 ;  ex  parte  Dunn,  25  How.  Pr.  467. 

There  is  a  plain  distinction  between  the  suspension  of  the  writ  in  the 
sense  of  the  Constitution  and  the  right  of  a  military  commander  to  refuse 
obedience  when  justified  by  the  exigencies  of  war,  or  the  ipso  facto  suspen- 
sion which  takes  place  wherever  martial  law  actually  exists.  But  this  kind 
.of  suspension  which  comes  with  war  and  exists  without  proclamation  or 
othuer  act,  is  limited  by  the  necessities  of  war.  It  applies  only  to  cases 
where  the  demands  upon  the  officer's  time  and  services  are  such  that  he 
can  not,  consistently  with  his  superior  military  duty,  yield  obedience  to  the 
mandates  of  the  civil  authorities,  and  to  cases  arising  within  districts  which 
are  properly  subjected  to  martial  law.  In  cases  of  the  latter  description  it 


BILL    OF    ATTAINDER.  103 

is  probable  that  the  civil  magistrates  would  be  bound  to  take  judicial  no- 
tice of  martial  law ;  but  as  to  the  former,  it  would  seem  that  the  military 
officer  should,  if  practicable,  make  return  of  the  facts  showing  his  excuse. 
In  re  Nicholas  Kemp,  16  Wis.  359. 

3.   No  bill  of  attainder,  or  ex  post  facto  law,  shall 
be  passed. 

This  provision  relates  to  criminal  laws  only.  Comm.  z/.  Lewis,  6  Binn. 
266. 

A  statute  making  treasury  notes  a  legal  tender  is  not  an  Ix  post  facto 
law.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

This  provision  applies  not  merely  to  criminal  laws  and  cases,  but  to 
cases  for  the  recovery  of  penalties  and  forfeitures.  U.  S.  v.  Hughes,  21  I. 
R.  R.  84. 

A  statute  which  attempts  to  validate  a  punishment  which  would  other- 
wise be  illegal,  is  an  ex  post  facto  law.  In  re  William  Murphy,  i  Wool.  141. 

Exclusion  from  any  of  the  professions,  or  any  of  the  ordinary  avocations 
of  life,  for  past  conduct,  is  a  punishment  for  such  conduct.  All  enact- 
ments of  this  kind  partake  of  the  nature  of  bills  of  pains  and  penalties,  and 
are  subject  to  the  constitutional  inhibition  against  the  passage  of  bills  of 
attainder,  under  which  general  designation  they  are  included.  Ex  parte 
Garland,  4  Wall.  333. 

If  a  party  who  has  once  incurred  a  forfeiture  seeks  to  avail  himself  of  a 
defense  granted  by  a  subsequent  law,  he  must  take  it  subject  to  such  terms 
and  conditions  as  the  legislature  at  the  time  when  it  passed  the  beneficial 
law,  or  at  any  future  time,  may  please  to  prescribe.  In  such  case  the  sub- 
sequent law  can  not  be  denominated  ex  post  facto,  because  it  does  not,  in 
any  respect,  change  the  condition  of  the  party  from  what  it  was  when  the 
act  was  performed.  U.  S.  v.  Hall,  2  Wash.  C.  C.  366. 

A  statute  excluding  a  person  from  the  practice  of  a  profession  unless 
he  will  take  an  oath  that  he  has  not  committed  a  certain  act  prior  to  the 
passage  thereof,  is  an  ex  post  facto  law.  Ex  parte  Garland,  4  Wall.  333 ; 
ex  parte  William  Law-,  35  Geo.  285  ;  ex  parte  John  Baxter,  14  A.  L.  Reg.  1 59. 

A  statute  which  imposes  forfeiture  of  citizenship  for  a  continuance  of 
desertion  by  refusing  to  return  after  an  assurance  of  pardon,  is  not  an  ex 
post  facto  law.  Gotcheus  v.  Matheson,  58  Barb.  152;  S.  C.  40  How.  Pr.  97. 

If  a  statute,  imposing  a  forfeiture  of  citizenship  for  a  continuance  of  de- 
sertion after  a  proclamation,  contemplates  a  trial  by  court  martial  to  enforce 
the  penalty,  it  is  not  a  bill  of  attainder.  Gotcheus  v.  Matheson,  58  Barb, 
152;  S.  C.  40  How.  Pr.  97. 


104  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  which  in  effect  makes  the  non-payment  of  taxes  for  a  certain 
period  sufficient  evidence  of  participation  in  rebellion,  and  forfeits  the  land 
absolutely  therefor,  is  a  bill  of  attainder.  Martin  v.  Snowden,  18  Gratt. 
100. 

A  statute  providing  for  a  forfeiture  of  the  distillery  premises  for  a  viola- 
tion of  an  internal  revenue  law,  is  not  a  bill  of  attainder.  U.  S.  v.  Distil- 
lery, 2  Abb.  C.  C.  192. 

A  treaty  for  the  extradition  of  criminals  is  not  an  ex  post  facto  law, 
although  it  provides  for  crimes  committed  before  its  adoption.  Ex  parte 
Angelo  De  Giacomo,  12  Blatch.  391. 

4.  No  capitation  or  other  direct  tax  shall  be  laid, 
-unless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken. 

The  census  referred  to  is  a  census  exhibiting  the  numbers  of  the  re- 
spective States.  The  omission  to  extend  it  to  the  District  of  Columbia  or 
the  territories,  would  not  render  it  defective.  The  application  of  the  power 
of  direct  taxation  is  not  limited  to  the  population  contained  in  this  census. 
The  language  of  the  clause  does  not  imply,  this  restriction.  It  is  that  no 
capitation  or  other  direct  tax  shall  be  laid  "  unless  in  proportion  to  the 
•census."  This  proportion  may  be  applied  to  the  District  of  Columbia  or 
the  territories.  If  an  enumeration  be  taken  of  the  population  in  the  Dis- 
trict of  Columbia  and  the  territories  on  the  same  principles  on  which  the 
enumeration  of  the  respective  States  is  made,  then  the  information  is  ac- 
quired by  which  a  direct  tax  may  be  imposed  on  the  District  of  Columbia 
and  the  territories.  If  the  tax  be  laid  in  this  proportion,  it  is  within  the 
very  words  of  the  restriction.  Loughborough  z/.  Blal^e,  5  Wheat.  317. 

It  was  obviously  the  intention  of  the  framers  of  the  Constitution  that 
Congress  should  possess  full  power  over  every  species  of  taxable  property 
except  exports.  The  term  taxes  is  generical,  and  was  made  use  of  to  vest 
in  Congress  plenary  authority  in  all  cases  of  taxatibn.  The  general  division 
of  taxes  is  into  direct  and  indirect.  Although  the  latter  term  is  not- to  be 
found  in  the  Constitution,  yet  the  former  necessarily  implies  it.  Indirect 
stands  opposed  to  direct.  There  may,  perhaps,  be  an  indirect  tax  on  a 
particular  article  that  can  not  be  comprehended  within  the  description  of 
duties,  or  imposts,  or  excises.  In  such  case  it  will  be  comprised  under  the 
general  denomination  of  taxes ;  for  the  term  taxes  is  the  genus,  and  in- 
cludes:  ist.  Direct  taxes.  2d.  Duties,  imposts  and  excises.  3d.  All  other 
classes  of  an  indirect  kind,  and  not  within  any  of  the  classifications  enu- 
merated under  the  preceding  heads.  Taxes  of  the  last  class  may  be  laid 
by  the  rule  of  uniformity  or  not,  as  Congress  shall  think  proper  and  reason- 
able. Hylton  v.  U.  S.  3  Dall.  171. 


CAPITATION    TAX.  IC>5 

A  general  power  is  given  to  Congress  to  lay  and  collect  taxes  of  every 
kind  or  nature,  without  any  restraint,  except  on  exports.  But  two  rules 
are  prescribed  for  their  government,  namely,  uniformity  and  apportionment. 
Three  kinds  of  taxes,  to  wit,  duties,  imposts  and  excises  by  the  first  rule, 
and  capitation  or  other  direct  taxes  by  the  second  rule.  Hylton  v.  U.  S. 
3  Dall.  171. 

This  clause  gives  a  rule  when  the  territories  shall  be  taxed  without  im- 
posing the  necessity  of  taxing  them.  Loughborough  v.  Blake,  5  Wheat. 
317. 

The  power  to  tax  without  apportionment  extends  to  all  other  subjects. 
Taxes  on  other  objects  are  included  under  the  head  of  taxes  not  direct 
duties,  imposts  and  excises,  and  must  be  laid  and  collected  by  the  rule  of 
uniformity.  Veazie  Bank  v.  Fenno,  8  Wall.  533. 

The  rule  of  apportionment  is  radically  wrong,  and  can  not  be  supported 
by  any  solid  reasoning.  It  ought  not,  therefore,  to  be  extended  by  con- 
struction. Apportionment  is  an  operation  on  States,  and  involves  valuations 
and  assessments  which  are  arbitrary,  and  should  not  be  resorted  to  but  in 
case  of  necessity.  Uniformity  is  a  visitant  operation  on  individuals,  with- 
out the  intervention  of  assessments  or  any  regard  to  States,  and  is  at  once 
easy,  certain  and  efficacious.  Hylton  v.  U.  S.  3  Dall.  171. 

.  The  Constitution  declares  that  a  capitation  tax  is  a  direct  tax,  and  both 
in  theory  and  practice  a  tax  on  land  is  deemed  to  be  a  direct  tax.  In  this 
way  the  terms,  direct  taxes  and  capitation  and  other  direct  taxes,  are  satis- 
fied. Whether  direct  taxes,  in  the  sense  of  the  Constitution,  comprehend 
any  other  tax  than  a  capitation  tax  and  a  tax  on  land,  is  a  questionable 
point.  Hylton  v.  U.  S.  3  Dall.  171. 

The  words  "  direct  taxes,"  as  used  in  the  Constitution,  comprehend 
only  capitation  taxes  and  taxes  on  lands,  and  perhaps  taxes  on  personal 
property,  by  general  valuation  and  assessment  of  the  various  descriptions 
possessed  within  the  several  States.  Veazie  Bank  v.  Fenno,  8  Wall.  533. 

A  tax  on  carriages  kept  for  his  own  use  by  the  owner  is  not  a  direct 
tax.  Hylton  v.  U.  S.  3  Dall.  171. 

A  tax  upon  the  business  of  an  insurance  company  is  not  a  direct  tax. 
Pacific  Ins.  Co.  v.  Soule,  7  Wall.  433. 

A  tax  on  bank  circulation  is  not  a  direct  tax.  Veazie  Bank  v.  Fenno,  8 
Wall.  533. 

A  tax  on  income  is  not  a  capitation  or  other  direct  tax.  Smedberry  v. 
Bentley,  21  I.  R.  R.  38;  Clark  v.  Sickel,  14  I.  R.  R.  6. 

A  succession  tax  is  not  a  direct  tax,  but  is  an  excise  tax  or  duty. 
Scholey^/.  Rew,  23  Wall.  331. 


IO6  CONSTITUTION    OF    THE    UNITED    STATES. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State.  No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another ;  nor  shall  vessels  bound  to 
or  from  one  State  be  obliged  to  enter,  clear  or  pay 
duties  in  another. 


The  prohibition  is  upon  Congress,  and  is,  by  the  fair  import  of  the 
words  and  the  connection  in  which  they  stand,  subsidiary  to  a  very  im- 
portant purpose,  to  wit,  to  restrain  Congress  from  fostering  or  oppressing 
one  port  or  the  commerce  of  one  State,  to  the  end  of  destroying  equality 
and  uniformity  as  to  levies  of  contributions  from  foreign  commerce.  It 
does  not  affect  the  States  in  the  regulation  of  their  domestic  affairs.  State 
v.  Charleston,  10  Rich.  240;  Munn  v.  Illinois,  94  111.  113. 

This  clause  does  not  apply  to  a  State  tax  upon  an  article  brought  into 
the  State  from  another  State.  State  v.  Charleston,  10  Rich.  240. 

This  provision  does  not  apply  to  the  imposition  of  taxes  on  foreign  ves- 
sels. It  is  within  the  discretion  of  Congress  to  totally  prohibit  the  import 
or  export  trade  in  foreign  vessels  to  or  from  our  ports,  or  to  grant  them  the 
privilege  of  bringing  in  or  carrying  out  cargoes  on  such  conditions  and 
under  such  restrictions  as  may  be  most  beneficial  to  the  United  States. 
Aguirre  v.  Marwell,  3  Blatch.  140. 

A  charge  for  a  stamp  on  a  package  of  tobacco  intended  for  export, 
which  is  devised  as  a  means  to  prevent  fraud,  and  bears  no  proportion 
whatever  to  the  value  or  size  of  the  package  on  which  it  is  affixed,  is  not  a 
tax  on  exports.  Pace  v.  Burgess,  92  U.  S.  372. 

The  history  of  the  provision  as  well  as  its  language  looks  to  a  prohibi- 
tion against  granting  privileges  or  immunities  to  vessels  entering  or  clear- 
ing from  the  ports  of  one  State  over  those  of  another.  These  privileges 
and  immunities,  whatever  they  may  be  in  the  judgment  of  Congress,  must 
be  common  and  equal  in  all  the  ports  of  the  several  States.  This  much  is 
undoubtedly  embraced  in  the  prohibition,  and  it  may  certainly  also  em- 
brace any  other  description  of  legislation  looking  to  a  direct  privilege  or 
preference  of  the  ports  of  any  particular  State  over  those  of  another. 
State  v.  Wheeling  Bridge  Co.  18  How.  421. 

It  is  a  mistake  to  assume  that  Congress  is  forbidden  to  give  a  prefer- 
ence to  a  port  in  one  State  over  a  port  in  another  State.  Such  preference 
is  given  in  every  instance  where  it  makes  a  port  in  one  State  a  port  of  entry 
and  refuses  to  make  another  port  in  another  State  a  port  of  entry.  No 
greater  preference  in  one  sense  can  be  more  directly  given  than  in  this  way, 
and  yet  the  power  of  Congress  to  give  such  preference  has  never  been 


EXPORTS    FROM    STATES. 


questioned,  nor  can  it  be  without  asserting  that  the  moment  Congress 
makes  a  port  in  one  State  it  is  bound  at  the  same  time  to  make  all  other 
ports  in  all  other  States  ports  of  entry.  State  v.  Wheeling  Bridge  Co.  18 
How.  421. 

There  are  many  acts  of  Congress  passed  in  the  exercise  of  the  power 
to  regulate  commerce  providing  for  a  special  advantage  to  the  port  or  ports 
of  one  State,  and  which  very  advantage  may  incidentally  operate  to  the 
prejudice  of  the  ports  in  a  neighboring  State.  The  improvement  of  rivers 
and  harbors,  the  erection  of  light  houses  and  other  facilities  of  commerce 
may  be  referred  to  as  examples.  The  exercise  of  an  admitted  power  of 
Congress  conferred  by  the  Constitution  is  not  to  be  prohibited,  because  it 
appears  or  can  be  shown  that  the  law  may  incidentally  extend  beyond  the 
limitation  of  the  power.  State  v.  Wheeling  Bridge  Co.  18  How.  421. 

The  clause  in  terms  seems  to  import  a  prohibition  against  some  posi- 
tive legislation  by  Congress  to  this  effect,  and  not  against  any  incidental 
advantages  that  may  possibly  result  from  the  legislation  of  Congress  upon 
other  subjects  connected  with  commerce,  and  confessedly  within  its  power. 
State  v.  Wheeling  Bridge  Co.  18  How.  421. 

WKat  is  forbidden  is  not  discrimination  between  individual  ports  within 
the  same  or  different  States,  but  discrimination  between  States.  State  V. 
Wheeling  Bridge  Co.  18  How.  421. 

A  State  tax  upon  capital  invested  in  ships  is  not  a  preference  of  the 
ports  of  one  State  over  the  ports  of  another  State.  State  v.  Charleston,  4 
Rich.  286. 

A  State  may  levy  a  tax  upon  money,  although  it  is  continuously  in- 
vested in  cotton  purchased  for  exportation.  People  z/.  Tax  Commissioner, 
17  N.  Y.  Supr.  255. 

This  provision  is  a  limitation  upon  the  power  of  Congress  to  regulate 
commerce  for  the  purpose  of  producing  entire  commercial  equality  within 
the  United  States,  and  also  a  prohibition  upon  the  State  to  destroy  such. 
equality  by  any  legislation  prescribing  a  condition  upon  which  vessels 
bound  from  one  State  shall  enter  the  ports  of  another  State.-  Passenger 
Cases,  7  How.  283  ;  s.  C.  45  Mass.  282  ;  Alexander  v.  Railroad  Co.  3 
Strobh.  594. 

This  provision  was  intended  to  prevent  vessels  bound  to  or  from  a  port 
in  any  State  being  obliged  to  enter,  clear  or  pay  duties  in  any  State  other 
than  that  to  or  from  which  they  should  be  proceeding.  U.  S.  v.  The  Wil- 
liam, 2  Am.  L.  J.  255. 

A  statute  regulating  commercial  intercourse  with  insurrectionary  States, 
and  imposing  duties  thereon,  is  valid.  Folsom  v.  U.  S.  4  Ct.  Cl.  366. 


IO8  CONSTITUTION    OF    THE    UNITED    STATES. 

This  clause  contemplates  a  restriction  upon  the  powers  of  Congress, 
and  not  a  restriction  upon  the  legislation  of  the  States  in  the  regulation  of 
their  internal  police.  Baker  v.  Wise,  16  Gratt.  139. 

A  State  may  require  the  inspection  of  vessels  bound  for  certain  ports, 
although  no  inspection  is  required  from  vessels  bound  for  other  ports,  if 
.such  requirement  is  a  part  of  a  police  law.  Baker  v.  Wise,  16  Gratt.  139. 

A  State  law  imposing  half  pilotage  fees  on  vessels  refusing  to  receive 
a  pilot  is  not  a  duty.  Cooley  v.  Philadelphia,  1 2  How.  299. 

6.  No  money  shall  be  drawn  from  the  treasury,  but 
in  consequence  of  appropriations  made  by  law ;  and  a 
regular  statement  and  account  of  the  receipts  and  ex- 
penditures of  all  public  money  shall  be  published  from 
time  to  time. 

7.  No  title  of   nobility  shall    be   granted    by  the 
United   States,   and  no  person  holding  any  office  of 
profit  or  trust  under  them  shall,  without  the  consent  of 
the -Congress,  accept  of  any  present,  emolument,  office 
or  title  of  any  kind  whatever,  from  any  king,  prince  or 
foreign  State. 

SECTION  x. 

i.  No  State  shall  enter  into  any  treaty,  alliance  or 
•confederation  ;  grant  letters  of  marque  and  reprisal ; 
coin  money  (a)  ;  emit  bills  of  credit  (<£)  ;  make  any- 
thing but  gold  and  silver  coin  a  tender  (c)  in  payment 
of  debts  ;  pass  any  bill  of  attainder  (d),  ex  post  facto  (e) 
law,  or  law  impairing  the  obligation  of  contracts ;  (/") 
or  grant  any  title  of  nobility. 

Coining  money. 

(a)  A  State  can  not  incorporate  any  number  of  individuals  and  author- 
ize them  to  coin  money.     Such  an  act  would  be  as  much  a  violation  of  the 
Constitution  as  if  the  money  were  coined  by  an  officer  of  the  State  under 
its  authority.     Briscoe  v.  Bank,  1 1  Pet.  257 ;  S.  C.  7  J.  J.  Marsh.  349. 

Bills  of  Credit. 

(b)  A  bill  of  credit  is  a  paper  issued  by  the  sovereign  power  containing 
a  pledge  of  its  faith,  and  designed  to  circulate  as  money.    Briscoe  2/.  Bank, 


BILLS    OF    CREDIT.  109 

II  Pet.  257;   s.  C.  7  J.  J.  Marsh.  349;    City  Nat'l  Bank  v.  Mahan,  21  La. 
Ann.  751 ;  Craig  v.  State,  4  Pet.  410. 

To  constitute  a  bill  of  credit  within  the  Constitution,  it  must  be  issued 
by  a  State  on  the  faith  of  the  State,  and  be  designed  to  circulate  as  money. 
It  must  be  paper  which  circulates  on  the  credit  of  the  State,  and 'is  so  re- 
ceived and  used  in  the  ordinary  business  of  life.  The  individual  or  com- 
mittee who  issue  the  bill  must  have  power  to  bind  the  State.  They  must 
act  as  agents,  and,  of  course,  do  not  incur  any  personal  responsibility,  nor 
impart  as  individuals  any  credit  to  the  paper.  These  are  the  leading  char- 
acteristics of  a  bill  of  credit  which  a  State  can  not  emit.  Briscoe  v.  Bank, 
II  Pet.  257 ;  S.  C.  7  J.  J.  Marsh.  349;  Billis  v.  State,  2  McCord,  12;  Cur- 
ran  v.  State,  15  How.  304;  s.  C.  12  Ark.  321. 

A  bill  of  credit  is  unconstitutional,  although  it  is  not  made  a  legal  ten- 
der. The  prohibition  is  general.  It  extends  to  all  bills  of  credit,  not  to 
bills  of  a  particular  description.  The  Constitution  considers  the  emission 
of  bills  of  credit,  and  the  enactment  of  tender  laws,  as  distinct  operations 
independent  of  each  other,  which  may  be  separately  performed.  Both  are 
forbidden.  To  sustain  the  one  because  it  is  not,  also  the  other;  to  say 
that  bills  of  credit  may  be  emitted  if  they  be  not  made  a  tender  in  payment 
of  debts,  is  in  effect  to  expunge  that  distinct  independent  prohibition,  and 
to  read  the  clause  as  if  it  had  been  entirely  omitted.  This  can  not  be  done. 
Craig  v.  State,  4  Pet.  410  ;  Byrne  v.  State,  8  Pet.  40 ;  Billis  v.  State,  2  Mc- 
Cord, 12  ;  McFarland  v.  State  Bank,  4  Ark.  44. 

The  prohibition  can  not  be  evaded  by  the  mere  omission  of  the  State 
to  pledge  its  faith  for  the  redemption  of  the  paper ;  nor,  on  the  other  hand, 
does  the  guaranty  of  the  State  for  an  emission  of  paper  as  the  representa- 
tive of  money,  conclusively  stamp  such  paper  as  the  bills  of  credit  forbidden 
by  the  Constitution.  Owen  v.  Branch  Bank,  3  Ala.  258  ;  Billis  v.  State, 
2  McCord,  12  ;  Darrington  v.  Branch  Bank,  13  How.  12. 

If  the  intention  to  create  a  currency  is  apparent,  from  the  whole  scope 
of  the  act,  the  emission  is  a  bill  of  credit.  State  v.  Hoge,  4  Rich.  (N.  S.) 
185  ;  State  v.  Auditor,  4  Rich.  (N.  S.)  311. 

Although  the  issuing  of  bills  of  credit  is  a  question  ftf  intent,  yet  the 
intent  which  must  stamp  the  character  of  an  instrument  is  that  of  the  leg- 
islature which  enacted  the  law,  not  of  the  officers  who  were  to  execute  it, 
or  of  the  persons  who  received  the  instrument.  The  legislative  intent  can 
be  deduced  from  the  legislative  acts  alone.  In  construing  statutes,  courts 
may  look  to  the  history  and  condition  of  the  country  as  circumstances  from 
which  to  gather  the  intention.  Payaud  v.  State,  13  Miss.  491. 

A  State  may  grant  acts  of  incorporation  for  the  attainment  of  those  ob- 
jects which  are  essential  to  the  interests  of  society.  This  power  is  incident 
to  sovereignty,  and  there  is  no  limitation  in  the  Constitution  in  its  exercise 


IIO  CONSTITUTION    OF    THE    UNITED    STATES. 

by  the  States  in  respect  to  the  incorporation  of  banks.  Consequently  the 
notes  issued  by  a  bank  are  not  bills  of  credit  within  the  meaning  of  the 
Constitution.  Briscoe  v.  Bank,  n  Pet.  257;  s.  C.  7  J.  J.  Marsh,  349; 
Craighead  v.  Bank,  I  Meigs,  199 ;  Lampton  v.  Bank,  2  Litt.  300  ;  Billis  v. 
State,  2  McCord,  12  ;  Bank  v.  Spilman,  3  Dana,  150;  State  v.  Calvin,  R. 
M.  Charlt.  151  ;  6wen  v.  Branch  Bank,  3  Ala.  258  ;  McFarland  v.  State 
Bank,  4  Ark.  44. 

A  bill  of  credit  emanates  from  the  sovereignty  of  the  State.  It  rests  for 
its  currency  on  the  faith  of  the  State  pledged  by  a  public  law.  Whatever 
agency  is  employed  to  issue  it,  the  State  promises  to  pay  it  or  to  receive  it 
in  payment  of  public  dues.  When  a  particular  fund  is  designated,  out  of 
which  it  is  to  be  paid,  it  depends  upon  the  faith  of  the  State  whether  such 
fund  shall  be  so  appropriated.  The  State  can  not  be  sued  ordinarily  on 
.such  bill  nor  its  payment  exacted  against  its  will.  There  is  no  fund  or 
property  which  the  holder  of  the  bill  can  reach  by  judicial  process.  Such 
an  instrument  is  altogether  different  in  form  and  substance  from  a  note 
issued  by  a  bank  whose  capital  is  effectually  chargeable  with  the  redemp- 
tion of  its  notes.  Darrington  v.  Branch  Bank,  13  How.  12;  Curran  v. 
State,  15  How.  304;  S.  C.  12  Ark.  321  ;  Central  Bank  v.  Little,  n 
Geo.  346. 

When  a  State  becomes  a  stockholder  in  a  bank,  it  imparts  none  of  its 
attributes  of  sovereignty  to  the  institution,  and  this  is  equally  the  case 
whether  it  owns  the  whole  or  a  part  of  the  stock  of  the  bank.  Darrington 
v.  Branch  Bank,  13  How.  12  ;  Central  Bank  v.  Little,  11  Geo.  346  ;  Bris- 
coe v.  Bank,  II  Pet.  257  ;  s.  C.  7  J.  J.  Marsh,  249  ;  Billis  v.  State,  2  Mc- 
Cord, 12  ;  Owen  v.  Branch  Bank,  3  Ala.  258;  McFarland  v.  State  Bank,  4 
Ark.  44;  Woodruff  v.  Trapnall,  10  How.  190;  s.  C.  8  Ark.  236. 

.The  mere  fact  that  the  directors  of  a  bank  whose  stock  is  owned  solely 
by  the  State  are  elected  by  the  legislature,  will  not  make  its  notes  bills  of 
credit.  Darrington  v.  Branch  Bank,  13  How.  12. 

The  bank  notes  are  not  bills  of  credit,  although  the  bank  is  owned  by 
the  State,  and  its  officers  give  bond  to  the  State  for  the  faithful  discharge 
of  their  duties.  Billis  v.  State,  2  McCord,  12  ;  contra,  Linn  v.  State  Bank, 
3  HI.  87. 

An  act  which  is  prohibited  can  not  be  done  by  a  State,  either  directly 
or  indirectly.  A  State  can  not,  by  any  device  that  may  be  adopted,  emit 
bills  of  credit.  Briscoe  v.  Bank,  u  Pet.  257;  S.  C.  7  J.  J.  Marsh,  349;. 
Bank  v.  Clark,  4  Mo.  59;  Griffith  v.  Bank,  4  Mo.  255. 

A  State  can  act  only  through  its  agents.  It  would  therefore  be  absurd 
to  say  that  an  act  was  not  done  by  a  State  which  was  done  by  its  author- 
ized agents.  Briscoe  v.  Bank,  n  Pet.  257 ;  S.  C.  7  J.  J.  Marsh,  349. 


LEGAL    TENDER.  I  I  I 

The  word  "emit  "  is  never  employed  in  describing.  those  contracts  by 
which  a  State  binds  itself  to  pay  money  at  a  future  day  for  services  actual- 
ly received,  or  for  money  borrowed  for  present  use  ;  nor  are  instruments 
executed  for  such  purposes  in  common  language  denominated  ''  bills  of 
credit."  Craig  v.  State,  4  Pet.  410;  Payaud  v.  State,  13  Miss.  491. 

A  loan  certificate  issued  on  the  faith  of  the  State,  and  made  receivable 
for  taxes  and  debts  due  to  the  State,  and  for  the  salaries  of  State  officers,  is 
.a  bill  of  credit.  Craig  z/.  State,  4  Pet.  410;  Byrne  v.  State,  8  Pet.  40. 

A  certificate  of  indebtedness  which,  by  law,  is  receivable  in  payment  of 
taxes,  is  not  a  bill  of  credit.  State  z>.  Cardozo,  5  Rich.  (N.  S.)  297. 

A  treasury  note  issued  by  a  State  to  an  individual  as  evidence  of  a  loan, 
and  not  intended  as  a  circulating  medium,  is  not  a  bill  of  credit.  Green 
v.  Sizer,  40  Miss.  530. 

An  auditor's  warrant,  issued  according  to  law  for  the  payment  of  a  de- 
mand against  the  State,  is  not  a  bill  of  credit.  Payaud  v.  State,  13  Miss. 


States  and  municipal  corporations  may  borrow  money  and  give  proper 
securities  therefor,  and  such  securities  are  not  bills  of  credit.  McCoy  v. 
Washington  Co.  3  Wall.  Jr.  381  ;  S.  C.  3  Phila.  290. 

The  State  may  authorize  a  municipal  corporation  to  issue  certificates  of 
indebtedness,  and  make  them  receivable  in  payment  of  public  taxes.  Mayor 
-V.  State,  15  Md.  376. 

A  State  may  authorize  a  municipal  corporation  to  issue  bills  of  credit. 
Smith  v.  New  Orleans,  23  La.  Ann.  5. 

A  municipal  corporation  may  issue  treasury  notes,  make  them  re- 
ceivable for  all  debts  due  to  it,  and  pledge  its  real  estate  for  their  redemp- 
tion. Smith  v.  New  Orleans,  23  La..  Ann.  5. 

A  State  government  organized  by  a  force  in  rebellion  against  the 
United  States,  can  not  issue  bills  of  credit.  McCracken  v.  Poole,  19  La 
Ann.  359. 

Confederate  notes  were  not  bills  of  credit,  for  they  were  not  issued  by 
virtue  of  the  sovereignty  of  a  State,  nor  rest  on  the  faith  of  a  State  for  their 
currency.  Bailey  it.  Milner,  35  Geo.  330. 

A  bill  of  credit  is  not  a  good  consideration  for  a  contract.  Craig  v. 
State,  4  Pet.  410;  Bank  v.  Clark,  4  Mo.  59  ;  Linn  v.  State  Bank,  5  111.  87. 

Legal  Tender. 

(c)  If  one  person  owes  to  another  a  certain  sum  of  money,  this  is  a  debt. 
It  is  the  duty  of  the  debtor  to  produce  to  the  creditor  that  sum  of  money, 


112  CONSTITUTION   OF    THE    UNITED    STATES. 

and  offer  to  pay  it  to  him ;  this  is  a  tender.  If  the  debt  so  tendered  is  not 
received  by  the  creditor,  the  debtor  is  thereby  discharged  from  the  duty  of 
tendering  it  again,  until  it  shall  have  been  legally  demanded  by  the  cred- 
itor. A  tender  may  therefore,  in  general  terms,  be  defined  to  be  an  act  on 
the  part  of  the  debtor  which  affords  some  exemption  to  him,  and  works  a 
correspondent  inconvenience  to  the  creditor.  The  Constitution  therefore 
prohibits  the  States  from  passing  laws,  the  effect  of  which  will  be  to  induce 
the  creditor  to  receive  something  else  than  gold  and  silver  coin  in  payment 
of  the  debt  due  him,  in  order  to  avoid  an  inconvenience  that  would  result 
on  his  failure  to  do  so.  Baily  V.  Gentry,  I  Mo.  164. 

The  clause  is  not  enabling,  nor  does  it  oblige  the  States  to  pass  tender 
laws.  Van  Husan  v.  Kanouse,  13  Mich.  303. 

A  State  has  no  power  over  the  currency  further  than  the  right  to  estab- 
lish banks,  to  regulate  or  prohibit  the  circulation  within  the  State  of  foreign 
notes,  and  determine  in  what  the  public  dues  shall  be  paid.  Woodruff  v. 
Trapnall,  10  How.  190;  s.  C.  8  Ark.  236. 

A  statute  which  provides  for  a  stay  of  execution  for  a  certain  period, 
unless  the  creditor  will  accept  property  at  two-thirds  of  its  appraised  value, 
is  unconstitutional.  Baily  2/.  Gentry,  I  Mo.  164. 

If  the  charter  of  a  bank  attempts  to  make  the  notes  of  the  bank  a  legal 
tender,  this  provision  will  be  unconstitutional,  but  will  not  in  any  degree 
affect  the  constitutionality  of  the  bank.  Briscoe  v.  Bank,  u  Pet.  257 ;  s.  C. 
7  J.  J.  Marsh,  349. 

A  statute  requiring  county  scrip  to  be  received  for  taxes  due  to  the 
county  is  unconstitutional.  Gaines  v.  Rives,  8  Ark.  220. 

A  statute  requiring  a  bank  to  receive  its  own  notes  in  payment  of  the 
note  of  another  bank  presented  for  payment  by  it  is  void.  Bank  v.  Bank 
of  Cape  Fear,  13  Ired.  75. 

A  statute  which  provides  for  a  stay  of  execution' for  a  certain  period, 
unless  the  creditor  will  accept  the  paper  of  a  State  bank  in  payment,  is  un- 
constitutional. Townsend  v.  Townsend,  Peck,  i  ;  Briscoe  v.  Bank,  1 1  Pet. 
257;  s.  C.  7  J.  J.  Marsh,  349. 

A  statute  making  bank  notes  a  legal  tender  is  unconstitutional.  Lowry 
v:  M'Ghee,  8  Yerg.  242 ;  Briscoe  v.  Bank,  n  Pet.  257  ;  S.  C.  7  J.  J.  Marsh, 
349- 

A  State  law  authorizing  the  tender  of  scrip  of  a  corporation  in  payment 
for  damages  assessed  in  favor  of  an  individual  whose  property  is  taken  for 
its  benefit,  is  void.  State  v.  Beackmo,  8  Blackf.  246. 

The  Legislature  may  from  time  to  time  prescribe  in  what  currency  debts 
due  to  a  public  corporation  shall  be  paid,  and  may  then  make  the  notes  of 
a  State  bank  a  legal  tender  therefor.  Bush  v.  Shipman,  5  111.  186. 


ATTAINDER.  113 


Attainder. 

(d)  A  bill  of  attainder  is  a  legislative  act  which  inflicts  punishment 
without  a  judicial  trial.  If  the  punishment  is  less  than  death,  the  act  is 
termed  a  bill  of  pains  and  penalties.  Within  the  meaning  of  the  Constitu- 
tion, bills  of  attainder  include  bills  of  pains  and  penalties.  Cummings  v. 
State,  4  Wall.  277  ;  s.  C.  36  Mo.  263. 

All  men  have  certain  inalienable  rights,  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness.  In  the  pursuit  of  happiness  all  avocations, 
all  honors,  all  positions  'are  alike  open  to  every  one ;  and  in  the  protection 
of  these  rights  all  are  equal  before  the  law.  Any  deprivation  or  suspension 
of  any  of  these  rights  for  past  conduct  is  punishment.  Cummings  v.  State, 
4  Wall.  277  ;  S.  C.  36  Mo.  263. 

What  can  not  be  done  directly,  can  not  be  done  indirectly.  The  Con- 
stitution deals  with  substance,  not  shadows.  Its  inhibition  is  leveled  at  the 
thing,  not  the  name.  It  intends  that  the  rights  of  the  citizen  shall  be  secure 
against  deprivation  for  past  conduct  by  legislative  enactment,  under  any 
form,  howeVer  disguised.  Cummings  z/.  State,  4  Wall.  277  ;  S.  C.  36  Mo. 
263. 

A  bill  of  attainder  may  inflict  punishment  absolutely,  or  may  inflict  it 
conditionally.  Cummings  v.  State,  4  Wall.  277 ;  S.  C.  36  Mo.  263. 

Whether  a  statute  excluding  persons  from  pursuing  certain  vocations 
is  a  bill  of  attainder,  must  depend  wholly  upon  what  was  the  direct  scope, 
object,  and  real  intention  of  the  act.  If  it  were  simply  a  measure  of.  polit- 
ical wisdom,  for  the  purposes  of  good  government,  it  is  a  matter  within  the 
sovereign  power,  and  valid  beyond  the  reach  of  judicial  condemnation.  To 
bring  it  within  the  definition  of  a  bill  of  attainder,  it  is  absolutely  necessary 
that  it  should  be  such  by  the  very  scope,  operation,  and  intention  of  it. 
Murphy  &  Glover  Cases,  41  Mo.  339. 

A  State  law  which  deprives  a  party  of  the  privilege  of  pursuing  a  certain 
avocation,  unless  he  will  take  an  expurgatory  oath  that  he  has  not  been 
guilty  of  a  certain  offense  prior  thereto,  is  invalid.  Murphy  &  Glover  Cases, 

41  Mo.  339;  State  v.  Heighland,  41  Mo.  388;  Cummings  v.  State,  4  Wall. 
277 ;  S.  C.  36  Mo.  263  ;  contra,  State  v.  Garesche,  36  Mo.  256, 

A  statute  which  deprives  a  party  of  the  privilege  of  enforcing  a  contract, 
on  account  of  an  act  previously  done,  is  a  bill  of  attainder.  McNealy  v. 
Gregory,  13  Fla.  417. 

A  statute  of  indemnity  for  acts  done  by  virtue  of  military  authority  in 
times  of  civil  war,  is  not  a  bill  of  attainder.  Drehman  v.  Stifle,  41  Mo. 
184 ;  S.  C.  8  Wall.  595  ;  Hess  v.  Johnson,  3  W.  Va.  645  ;  Smith  V.  Owen, 

42  Mo.  508;  State  v.  Gatzweiller,  49  Mo.  18;  Clark  v.  Dick,  i  Dillon,  8. 

8 


114  CONSTITUTION    OF    THE    UNITED    STATES. 

The  right  of  suffrage  being  the  creature  of  organic  law,  may  be  modi- 
fied or  withdrawn  by  the  sovereign  authority  which  conferred  it,  without 
inflicting  any  punishment.  A  State  may  therefore  require  that  a  party 
shall  take  an  expurgatory  oath  that  he  has  not  done  a  certain  act  before  he 
can  be  allowed  to  vote.  Anderson  v.  Baker,  23  Md.  531  ;  Randolph  v. 
Good,  3  W.  Va.  551  ;  Blair  v.  Ridgley,  41  Mo.  63;  State  z/.  Neal,  42  Mo. 
119  ;  contra,  Green  v.  Shumway,  39  N.  Y.  418. 

A  statute  depriving  a  party  of  a  right  to  a  rehearing  of  an  attachment 
suit,  unless  he  will  take  an  oath  that  he  has  not  theretofore  done  certain 
acts,  is  a  bill  of  attainder.  Pierce  v.  Carskadon,  16  Wall.  234  ;  Kyle  v. 
Jenkins,  6  W.  Va.  371  ;  Ross  v.  Jenkins,  7  W.  Va.  284;  Lynch  v.  Hoff- 
man, 7  W.  Va.  553;  Lynch  v.  Hoffman,  7  W.  Va.  578. 


Ex  Po§t  Facto  Laws. 

(<?)  The  prohibition  that  "  no  State  shall  pass  any  ex  post  facto  law," 
necessarily  requires  some  explanation,  for  naked  and  without  explanation 
it  is  unintelligible,  and  means  nothing.  Literally  it  is  only  that  a  law  shall 
not  be  passed  concerning,  and  after  the  fact  or  thing  done  or  action  com- 
mitted. The  prohibition  in  the  letter  is  not  to  pass  any  law  concerning 
and  after  the  fact,  but  the  plain  and  obvious  meaning  and  intention  of  the 
prohibition  is  this,  that  the  legislatures  of  the  several  States  shall  not  pass 
laws  after  a  fact  done  by  a  subject  or  citizen  which  shall  have  relation  to 
such  fact,  and  shall  punish  him  for  having  done  it.  The  prohibition  con- 
sidered in  this  light  is  an  additional  bulwark  in  favor  of  the  personal  se- 
curity of  the  subject  to  protect  his  person  from  punishment  by  legislative 
acts  having  a  retrospective  operation.  Calder  v.  Bull,  3  Dall.  386  ;  s.  C.  2 
Root,  350. 

The  fact  contemplated  by  the  prohibition,  and  not  to  be  affected  by  a 
subsequent  law,  is  some  fact  to  be  done  by  a  citizen  or  subject.  Calder  v. 
Bull,  3  Dall.  386;  s.  C.  2  Root,  350. 

The  words  ex  post  facto  do  mean  "by  matter  of  after  fact,  by  some- 
thing after  the  fact."  But  there  is  a  manifest  distinction  between  the  case 
where  one  fact  relates  to  and  affects  another  fact,  as  where  an  after  fact, 
by  operation  of  law,  makes  a  former  fact  either  lawful  or  unlawful,  and  the 
case  where  a  law  made  after  a  fact  done  is  to  operate  on  and  to  affect  such 
fact.  In  the  first  case  both  the  acts  are  done  by  private  persons.  In  the 
second  case  the  first  act  is  done  by  a  private  person,  and  the  second  is 
done  by  the  legislature  to  affect  the  first  act.  Calder  v.  Bull,  3  Dall.  386 ; 
S.  C.  2  Root,  350. 

This  provision  was  not  inserted  to  secure  the  citizen  in  his  private 
rights  of  either  property  or  contracts.  The  prohibition  not  to  make  any- 
thing but  gold  and  silver  coin  a  tender  in  payment  of  debts,  and  not  to  pass 


EX    POST    FACTO    LAWS.  115 

any  law  impairing  the  obligation  of  contracts,  were  inserted  to  secure  pri- 
vate rights,  but  the  restriction  not  to  pass  any  ex  post  facto  law  was  to  se- 
cure the  person  of  the  subject  from  injury  or  punishment  in  consequence 
of  such  law.  Calder  v.  Bull,  3  Ball.  386;  s.  C.  2  Root,  350. 

The  true  distinction  is  between  ex  post  facto  laws  and  retrospective 
laws.  Every  ex  post  facto  law  must  necessarily  be  retrospective,  but 
every  retrospective  law  is  not  an  ex  post  facto  law.  The  former  only  are 
prohibited.  , Calder  v.  Bull,  3  Dall.  386;  S.  C.  2  Root,  350;  Bridgeport  v. 
Hubbell,  5  Conn.  237;  Stoddart  v.  Smith,  5  Binn.  355;  Locker.  Dane,  9 
Mass.  360 ;  Society  v.  Wheeler,  2  Gallis.  105 ;  Fisher  v.  Cockerill,  5  Mon. 
129;  Dash  v.  Van  Kleeck,  7  Johns.  477 ;  Davis  v.  Ballard,  I  J.  J.  Marsh. 
563;  Suydam  v.  Receivers,  3  N.  J.  Eq.  114;  Byrne  v.  Stewart,  3 'Dessau. 
466 ;  White  v.  Wayne,  T.  U.  P.  Charlt.  94 ;  Forsyth  v.  Marbury,  R.  M. 
Charlt.  324;  Andrews  v.  Russell,  7  Blackf.  474;  Blackman  v.  Gordon, 
2  Rich.  Eq.  43;  S.  C.  I  Rich.  Eq.  61  ;  Sutherland  v.  De  Leon,  I  Tex.  250; 
State  v.  Squires,  26  Iowa,  340;  Caperton  v.  Martin,  4  W.  Va.  138  ;  Baugher 
v.  Nelson,  9  Gill,  299 ;  Coles  v.  Madison,  Breese,  115;  Carpenter  v.  Comm. 
17  How.  456;  Albee  v.  May,  2  Paine,  74;  State  v.  Kline,  23  Ark.  587; 
Aldridge  v.  Tuscumbia  R.  R.  Co.  2  Stew.  &  Port.  199 ;  Locker.  New  Or- 
leans, 4  Wall.  172;  Weister  v.  Hade,  52  Penn.  474;  Ex  parte  Perkins,  2 
Cal.  424  ;  Lord  v.  Chadwick,  42  Me.  429 ;  Butler  v.  Toledo,  5  Ohio  St. 
225 ;  Stokes  v.  Rodman,  5  R.  I.  405  ;  Powers  v.  Dougherty  Co.  23  Geo. 
65;  New  Orleans  v.  Cordeviolle,  13  La.  Ann.  268;  Municipality  v. 
Wheeler,  10  La  Ann.  745. 

The  words  ex  post  facto  must  be  taken  in  their  technical,  which  is  also 
their  common  and  general  acceptation,  and  are  not  to  be  understood  in 
their  literal  sense.  Calder  v.  Bull,  3  Dall.  386;  S.  C.  2  Root,  350. 

The  provision  of  the  Constitution  can  not  be  evaded  by  the  form  in 
which  the  power  of  the  State  is  exerted.  Cummings  v.  State,  4  Wall.  277  ; 
S.  C.  36  Mo.  263. 

The  laws  which  are  ex  post  facto  within  the  words  and  intent  of  the 
prohibition  are:  ist.  Every  law  that  makes  an  action  done  before  the 
passing  of  the  law,  and  which  was  innocent  when  done,  criminal ;  2d. 
Every  law  that  aggravates  a  crime,  or  makes  it  greater  than  it  was  when 
committed  ;  3d.  Every  law  that  changes  the  punishment,  and  inflicts  a 
greater  punishment  than  the  law  annexed  to  the  crime  when  committed ; 
4th.  Every  law  that  alters  the  legal  rules  of  evidence,  and  receives  less  or 
different  testimony  than  the  law  required  at  the  time  of  the  commission  of 
the  offense,  in  order  to  convict  the  offender.  All  these,  and  similar  laws, 
are  manifestly  unjust  and  oppressive.  Calder  v.  Bull,  3  Dall.  386  ;  S.  C.  2 
Root,  350;  Walston  v.  Comm.  16  B.  Mon.  15;  State  v.  Bond,  4  Jones 
(N.  C.)  9. 

The  words  ex  post  facto  relate  to  crimes,  and  not  to  criminal  proceed- 


Il6  CONSTITUTION    6F    THE    UNITED    STATES. 

ings.  A  statute  regulating  criminal  proceedings  is  valid.  Perry  v.  Comm. 
3  Gratt.  632;  Manning  v.  State,  14  Tex.  402;  Walston  v.  Comm.  16  B. 
Mon.  15  ;  People  v.  Mortimer,  46  Cal.  114. 

A  statute  allowing  the  State  a  certain  number  of  peremptory  challen- 
ges is  not  an  ex  post  facto  law.  Walston  v.  Comm.  16  B.  Mon.  15 ;  State 
v.  Ryan,  13  Minn.  370. 

A  statute  reducing  the  number  of  peremptory  challenges  is  not  an  ex 
post  facto  law.  Perry  v.  Comm.  3  Gratt.  632 ;  Reynolds  v.  State,  i  Geo. 

222. 

A  statute  erecting  a  new  tribunal  to  try  past  offenses  is  not  an  ex  post 
facto  law.  Comm.  v.  Phillips,  28  Mass.  28 ;  State  v.  Sullivan,  14  Rich.  281. 

A  statute  changing  the  mode  of  summoning  juries  is  not  an  ex  post 
facto  law.  Perry  v.  Comm.  3  Gratt.  632. 

A  statute  allowing  the  counsel  for  the  State  to  open  and  close  the  ar- 
gument before  the  jury,  instead  of  alternating  with  the  counsel  for  the  de- 
fense, is  valid.  People  v.  Mortimer,  46  Cal.  114. 

A  statute  changing  the  place  of  trial  from  one  county  to  another,  in  the 
same  district,  or  even  to  a  different  district  from  that  in  which  the  offense 
was  committed,  or  the  indictment  found,  is  not  an  ex  post  facto  law,  though 
passed  subsequent  to  the  commission  of  the  offense,  or  the  finding  of  the 
indictment.  Gut  v.  State,  9  Wall.  35. 

A  statute  which  deprives  the  accused  of  the  right  to  object  to  an  incom- 
petent grand  juror  is  an  ex  post  facto  law.  Martin  v.  State,  22  Tex.  214. 

A  statute  which  operates  only  on  the  forms  of  the  proceeding,  render- 
ing a  defective  indictment  valid,  is  not  unconstitutional,  for  it  only  pro- 
vides the  means  by  which  a  criminal  may  be  brought  to  answer  for  that 
which  was  a  crime  when  committed.  Comm.  v.  Bean,  Thach.  Crim.  Cas. 
85  ;  State  v.  Sears,  Phil.  146. 

A  statute  allowing  an  amendment  of  an  indictment  to  correct  a  misno- 
mer of  the  accused,  is  not  an  ex  post  facto  law,  for  it  merely  has  reference 
to  the  mode  of  conducting  the  proceedings  on  the  prosecution.  State  v. 
Manning,  14  Tex.  402. 

Any  change  which  is  referable  to  prison  discipline,  or  penal  adminis- 
tration, as  its  primary  object,  may  also  take  effect  upon  past  as  well  as 
future  offenses,  such  as  changes  in  the  manner  or  kind  of  employment  of 
convicts  sentenced  to  hard  labor,  the  system  of  supervision,  or  the  like. 
Changes  of  this  sort  may  operate  to  increase  or  mitigate  the  severity  of  the 
punishment,  but  do  not  raise  any  question  under  this  provision.  Hartung 
v.  People,  22  N.  Y.  95. 


EX    POST    FACTO    LAWS.  117 

To  aggravate  the  punishment  of  a  crime  by  a  law  posterior  to  its  com- 
mission, is  forbidden  by  the  same  reason  that  restrains  the  legislature  from 
converting  into  a  crime  an  act  innocent  when  committed.  Dickinson  v. 
Dickinson,  3  Murph.  327. 

A  law  which  increases  the  punishment  is  ex  post  facto,  although  it  does 
not  change  the  manner  of  the  punishment.  Shepherd  v.  People,  25  N.  Y. 
406. 

A  statute  which  adds  a  new  punishment,  or  increases  an  old  one,  for  an 
offense  committed  before  its  adoption,  is  an  ex  post  facto  law.  Ross  v. 
Riley,  19  Mass.  165  ;  State  v.  Salomons,  Riley,  99  ;  Hartung  v.  People,  22 
N.  Y.  95 ;  Hartung  v.  People,  26  N.  Y.  167  ;  Wilson  z/.  O.  &  M.  R.  R.  Co. 
64  111.  542. 

A  statute  which  imposes  a  different  punishment  from  that  which  ex- 
isted at  the  time  of  the  commission  of  the  offense,  is  not  an  ex  post  facto 
law,  if  the  punishment  is  not  increased.  Strong  v.  State,  I  Blackf.  193  ; 
Comm.  v.  Gardner,  77  Mass.  438  ;  contra,  Hartung  v.  People,  22  N.  Y.  95 ; 
Shepherd  v.  People,  25  N.  Y.  406 ;  State  v.  McDonald,  20  Minn.  136. 

No  law  is  considered  ex  post  facto  within  the  prohibition  that  mollifies 
the  rigor  of  the  criminal  law,  but  only  those  that  create  or  aggravate  the 
crime",  or  increase  the  punishment,  or  change  the  rules  of  evidence  for  the 
purpose  of  conviction.  Calder  v.  Bull,  3  Dall.  386;  S.  C.  2  Root,  350; 
State  v.  Arlin,  39  N.  H.  179. 

It  is  perfectly  competent  for  the  legislature  to  remit  any  separable  por- 
tion of  the  prescribed  punishment.  For  instance,  if  the  punishment  were 
fine  and  imprisonment,  a  law  which  dispenses  with  either  the  fine  or  the 
imprisonment  may  be  applied  to  existing  offenses.  The  term  of  imprison- 
ment may  be  reduced,  or  the  number  of  stripes  diminished  in  cases  punish- 
able in  that  manner.  Hartung  v.  People,  22  N.  Y.  95. 

A  statute  changing  the  punishment  for  larceny  from  whipping  and  im- 
prisonment in  a  jail  to  confinement  in  the  penitentiary,  mitigates  the  pun- 
ishment, and  is  not  ex  post  facto.  State  v.  Kent,  65  N.  C.  311. 

A  statute  which  provides  a  mitigated  alternative  punishment  at  the  dis- 
cretion of  the  jury,  is  not  ex  post  facto.  Turner  v.  State,  40  Ala.  21.  , 

The  substitution  of  imprisonment  for  life  in  place  of  death,  is  in  the 
eye  of  the  law  a  mitigation  of  the  punishment.  Comm.  v.  Gardner,  77 
Mass.  438 ;  contra,  Hartung  v.  People,  22  N.  Y.  95. 

A  statute  which  reduces  the  punishment,  may  take  away  from  the  ac- 
cused the  privilege  of  having  counsel  assigned  him,  and  of  being  furnished 
with  process  to  compel  the  attendance  of  witnesses.  State  v.  Arlin,  39 
N.  H.  179. 


Il8  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  imposing  an  additional  punishment  for  an  offense  committed 
after  the  passing  of  the  statute,  to  be  inflicted  by  the  court  upon  coming 
to  the  knowledge  of  certain  facts,  is  not  ex  post  facto,  although  those  facts 
are  the  commission  of  an  offense  before  the  passing  of  the  statute.  Ross 
T/.  Riley,  19  Mass.  165;  Rand  v.  Comm.  9  Gratt.  738 ;  Plumbly  v.  Comm. 
43  Mass.  413  ;  Ex  parte  Gutierrez,  45  Cal.  430. 

A  statute  authorizing  the  jury  to  assess  the  amount  of  the  fine  to  be 
imposed  or  punishment  to  be  inflicted,  only  provides  a  different  mode  of 
ascertaining  the  amount  of  the  fine  or  the  duration  of  the  imprisonment 
by  substituting  the  opinion  of  the  jury  for  that  of  the  judge,  and  is  not 
an  ex  post  facto  law.  Holt  z/.  State,  2  Tex.  363 ;  Dawson  v.  State,  6  Tex. 
347- 

A  statute  repealing  an  amnesty  act  is  an  ex  post  facto  law,  for  it  ren- 
ders that  criminal  which  was  not  so  before  its  adoption.  State  v.  Keith, 
63  N.  C.  140. 

A  statute  extending  the  time  for  prosecuting  misdemeanors  can  not  re- 
vive a  right  of  prosecution  which  was  barred  at  the  time  of  its  passage. 
State  v.  Sneed,  25  Tex.  Supp.  66. 

A  law  prohibiting  the  making  of  certain  contracts  is  valid.  Churchman 
v.  Martin,  54  Ind.  380. 

A  statute  allowing  a  divorce  for  an  act  which  was  no  ground  for  grant- 
ing a  divorce  at  the  time  when  it  was  committed,  is  an  ex  post  facto  law. 
Dickinson  v.  Dickinson,  3  Murph.  327 ;  contra,  Carson  -v.  Carson,  40 
Miss.  349. 

A  statute  allowing  the  court  in  granting  a  divorce  to  decree  that  the 
guilty  party  shall  not  contract  marriage  with  any  other  person  during  the 
lifetime  of  the  other  party,  is  not  an  ex  post  facto  law.  It  simply  leaves 
the  party  under  the  disability  of  his  marriage  contract,  and  does  not  im- 
pose any  new  punishment  or  penalty.  Elliott  v.  Elliott,  38  Md.  357. 

A  statute  which  alters  the  legal  rules  of  evidence,  and  receives  less  or 
different  testimony  than  the  law  required  at  the  time  of  the  commission  of 
the  offense  to  convict  the  offender,  is  an  ex  post  facto  law.  In  a  judicial 
inquiry  no  allegation  can  be  taken  as  a  fact  unless  it  be  admitted  or 
proved.  Unproved,  it  is  the  same  as  if  it  did  not  exist.  De  non  appa- 
rentibus  et  de  non  existentibus  eadem  est  ratio.  If  a  person  therefore 
is  charged  with  the  commission  of  an  act  which  can  be  proved  only  by 
testimony  of  a  particular  kind  or  grade,  a  law  passed  for  the  purpose  of 
admitting  less  testimony  with  a  view  to  make  conviction  more  easy,  is  the 
same  as  a  law  which  makes  an  innocent  act  criminal.  State  v.  Bond,  4 
Jones,  N.  C.  9 ;  Hart  v.  State,  40  Ala.  32. 

A  statute  which  permits  marriage  to  be  established  by  indirect  evi- 
dence, when  prior  thereto  it  could  only  be  established  by  direct  evidence,  is 
an  ex  post  facto  law.  State  v.  Johnson,  12  Minn.  476. 


EX    POST    FACTO    LAWS.  1  IQ 

A  State  law  imposing  a  tax  upon  transactions  during  a  preceding  year, 
is  not  an  ex  post  facto,  although  it  imposes  a  penalty  for  failing  to  render 
an  account  thereof.  State  v.  Bell,  Phillips,  76. 

A  statute  suspending  the  right  of  a  party  who  has  engaged  in  a  re- 
bellion against  the  Federal  Government,  to  continue  or  prosecute  a  suit 
during  the  continuance  of  the  rebellion,  is  an  ex  post  facto  law.  Davis  v 
Pierce,  7  Minn.  13  ;  Keough  v.  McNitt,  7  Minn.  30  ;  McFarland  v.  Butler, 
8  Minn.  116;  Jackson  v.  Butler,  8  Minn.  117. 

A  statute  which  deprives  a  citizen  of  the  right  to  vote,  unless  he  will 
take  an  expurgatory  oath  that  he  did  not  do  a  certain  act  prior  to  the  pas  - 
sage  thereof  is  valid,  for  the  State  has  full  powers  to  pass  laws  restrictive 
and  exclusive,  for  the  preservation  or  promotion  of  the  common  interests, 
as  political  and  social  emergencies  may  from  time  to  time  require,  though 
in  certain  cases  disabilities  may  directly  flow  as  a  consequence.  Anderson 
v.  Baker,  23  Md.  531  ;  Blairs.  Ridgley,  41  Mo.  63;  Randolphs/.  Good, 
3  W.  Va.  551  ;  State  v.  Neal,  42  Mo.  119;  contra,  Green  z/.  Shumway,  39 
N.  Y.  418. 

A  statute  which  deprives  a  person  of  the  right  to  hold  certain  offices 
and  trusts,  and  to  pursue  certain  avocations,  unless  he  will  take  an  expur- 
gatory oath  that  he  did  not  do  a  certain  act  prior  to  the  passage  thereof,  is 
an  ex  post  facto  law.  Cummings  v.  State,  4  Wall.  277 ;  s.  C.  36  Mo.  263 ; 
Murphy  &  Glover  Cases,  41  Mo.  339;  State  v.  Heighland,  41  Mo.  388; 
contra,  State  v.  Garesche,  36  Mo.  256. 

A  statute  which  prevents  a  party  from  holding  office  under  the  State 
government,  unless  he  will  take  an  expurgatory  oath  that  he  did  not  do  a 
certain  act  prior  to  the  passage  thereof,  is  not  an  ex  post  facto  law.  State 
v.  Woodson,  41  Mo.  227. 

A  statute  depriving  a  party  of  the  right  to  a  rehearing  of  an  attachment 
suit  unless  he  will  take  an  oath  that  he  has  not  theretofore  done  certain 
acts,  is  an  ex  post  facto  law.  Pierce  v.  Carskadon,  16  Wall.  234;  Kyle  z/. 
Jenkins,  6  W.  Va.  371 ;  Ross  v.  Jenkins,  7  W.  Va.  284;  Lynch  v.  Hoff- 
man, 7  W.  Va.  553 ;  s.  c.  7  W.  Va.  578. 

A  statute  which  prohibits  manufacturers  and  others  who  have  manu- 
factured or  bought  liquor  before  its  passage  from  selling  it  or  keeping  it 
for  sale  within  the  State,  is  not  an  ex  post  facto  law,  for  it  does  not  retroact 
except  by  the  civil  consequence  of  lessening  the  value  of  the  property. 
The  statute,  to  meet  the  well  settled  definition,  must  not  only  retroact,  but 
must  retroact  by  way  of  criminal  punishment  upon  that  which  was  not  a 
crime  before  its  passage.  State  v.  Paul,  5  R.  I.  185;  State  v.  Keeran,  5 
R.  I.  497- 

An  act  which  prescribes  conditions  under  which  alone  a  thing  may  be 
used  in  future,  can  not  be  ex  post  facto.  It  attaches  neither  guilt  nor  pun- 


I2O  CONSTITUTION    OF    THE    UNITED    STATES. 

ishment  to  a  past  act,  but  looks  forward  to  future  acts,  and  prohibits  the 
future  use  of  the  thing.  Evans  v.  Jordan,  I  Brock.  248;  s.  C.  9  Cranch, 
199;  Evans  v.  Weiss,  2  Wash.  C.  C.  342  ;  Evans  v.  Robinson,  I  Car.  L. 
Rep.  209. 

A  law  regulating  escheats,  which  does  not  refer  to  crimes,  pains  or  pen- 
alties, is  not  within  the  meaning  of  this  prohibition.  White  v.  Wayne,  T. 
U.  P.  Charlt.  94. 

A  law  that  repeals  a  prior  law  before  the  performance  of  the  acts  nec- 
essary to  give  a  vested  right  under  it,  is  not  an  ex  post  facto  law.  Van- 
home  v.  Dorrance,  2  Dall.  304. 

A  law  which  grants  a  new  trial  in  a  case  where  the  time  to  appeal  from 
the  decree  has  expired,  is  not  an  ex  post  facto  law.  Calder  v.  Bull,  3  Dall. 
386;  S.  C.  2  Root,  350. 

Obligation  of  Contracts. 

/  (/)  There  is  a  distinction  between  a  law  which  impairs  a  contract  and 
rvone  which  impairs  its  obligation.  It  is  a  law  which  impairs  the  obligation 
of  contracts,  and  not  the  contracts  themselves,  which  is  interdicted.  The 
term  "  obligation  "  was  well  considered  and  weighed  by  those  who  framed 
the  Constitution,  and  was  intended  to  convey  a  different  meaning  from 
what  the  prohibition  would  have  imported  without  it.  Ogden  v.  Saunders, 

12  Wheat.  213. 

j\  A  contract  is  defined  to  be  an  agreement  to  do  or  not  to  do  some  par- 
ticular thing.  Ogden  V.  Saunders,  12  Wheat.  213;  Sturgess  v.  Crownin- 
shield,  4  Wheat.  122  ;  Woodruff  V.  State,  3  Ark.  285  ;  Trustees  v.  Rider, 

13  Conn.  87;  Robinson  v.  Magee,  9  Cal,  81  ;  Farnsworth  v.  Vance,  2 
Cold.  108. 

The  obligation  of  a  contract  can  not  commence  before  the  date  of  the 
contract.  Blair  v.  Williams,  4  Litt.  34. 

The  obligation  of  the  contract  continues  until  the  debt  is  paid  or  the 
act  performed.  Baily  v.  Gentry,  I  Mo.  164. 

Any  law  which  impairs  the  obligation  of  the  contract,  whether  the  con- 
tract remains  in  its  original  shape  or  has  been  merged  in  a  judgment,  is 
within  the  operation  of  this  provision.  Whatever  shape  the  contract  may 
assume,  the  obligation  remains  until  it  is  actually  discharged,  or  until  the 
law  will  imply  its  discharge  from  circumstances.  Forsyth  v.  Marbury,  R. 
M.  Charlt.  324. 

The  great  principle  intended  to  be  established  by  the  Constitution, was 
the  inviolability  of  the  obligation  of  contracts  as  the  obligation  existed  and 
was  recognized  by  the  laws  in  force  at  the  time  the  contracts  were  made. 


OBLIGATIONS    OF    CONTRACTS.  121 

It  furnished  to  the  legislatures  of  the  States  a  simple  and  obvious  rule  of 
justice,  which,  however  theretofore  violated,  should  by  no  means  be  there-)* 
after  violated,  and  whilst  it  leaves  them  at  full  liberty  to  legislate  upon  the 
subject  of  all  future  contracts,  and  assign  to  them  either  no  obligation  or 
such  qualified  obligation  as  in  their  opinion  may  consist  with  sound  policy 
and  the  good  of  the  people,  it  prohibits  them  from  retrospecting  upon  ex- 
isting obligations  upon  any  pretext  whatever.  Ogden  v.  Saunders,  12 
Wheat.  213. 

The  word  "  obligation,"  as  found  in  this  provision,  is  not  used  in  its 
widest  sense.  It  is  the  "  obligation  of  contracts  "  that  can  not  be  impaired. 
The  obligation  of  other  things  than  contracts  is  not  protected.  Robinson 
v.  Magee,  9  Cal.  81. 

The  obligation  of  a  contract  is  that  which  requires  the  performance  of 
the  legal  duties  imposed  by  it.  The  duties  imposed  upon  one  of  the  con- 
tracting parties  are  correlative  with  the  rights  of  the  other.  What  one 
party  is  obliged  to  perform  the  other  has  a  right  to  have  performed. 
Blann  v.  State,  39  Ala.  353. 

Right  and  obligation  are  considered  by  all  ethical  writers  as  correlative 
terms.  Whatever  a  party  by  his  contract  gives  another  the  right  to  re<" 
quire,  he  by  that  act  lays  himself  under  an  obligation  to  yield  or  bestpwr 
The  obligation  of  every  contract  consists  then  of  that  right  or  power  ovep 
his  will  or  actions  which  a  party  by  his  contract  confers.  Ogden  v.  Saun- 
ders, 12  Wheat.  213  ;  Lapsley  v.  Brashears,  4  Litt.  47. 

An  agreement  does  not  always,  nay,  seldom  if  ever  upon  its  face,  spec- 
ify the  full  extent  of  the  terms  and  conditions  of  the  contract.     Many  things)  \ 
are  necessarily  implied  and  to  be  governed  by  some  rule  not  contained  inl/ 
the  agreement,  and  this  rule  can  be  no  other  than  the  existing  law  where! 
the  contract  is  made  or  to  be  executed.     Parties  must  be  understood  asj 
making  their  contracts  with  reference  to  existing  laws,  and  impliedly  as-j 
senting  that  such  contracts  are  to  be  construed,  governed  and  controlled 
by  such  laws.     Ogden  v.  Saunders,  12  Wheat.  213. 

The  obligation  of  a  contract  is  the  law  which  binds  the  parties  to  perform 
'their  agreement.  The  law  which  has  this  binding  obligation  must  govern 
and  control  the  contract  in  every  shape  in  which  it  is  intended  to  bear  upon 
it,  whether  it  affects  its  validity,  construction  or  discharge.  That  law  is 
the  municipal  law  of  the  State,  whether  written  or  unwritten.  This  is 
emphatically  the  law  of  the  contract  made  within  the  State,  and  must 
govern  it  throughout  wherever  its  performance  is  sought  to  be  enforced. 
It  forms  a  part  of  the  contract,  and  travels  with  it  wherever  the  parties  to 
it  may  be  found.  Ogden  v.  Saunders,  12  Wheat.  213  ;  Sturges  T/.  Crown- 
inshield,  4  Wheat.  122;  Bronson  v.  Kinzie,  I  How.  311;  McCracken  z>. 
Hayward,  2  How.  608;  Blair  v.  Williams,  4  Litt.  34;  Lapsley  v.  Brashears, 
4  Litt.  47. 


122  CONSTITUTION    OF    THE    UNITED    STATES. 

The  Constitution  refers  to  and  preserves  the  legal  not  the  moral  obli- 
gation of  a  contract.  Obligations  purely  moral  are  to  be  enforced  by  the 
operation  of  internal  and  invisible  agents,  not  by  the  agency  of  human 
laws.  The  restraints  imposed  on  States  by  the  Constitution,  are  intended 
for  those  objects  which  would,  if  not  restrained,  be  the  subject  of  State 
legislation.  Ogden  z/.  Saunders,  12  Wheat.  213;  Blair  v.  Williams,  4 
Litt.  34. 

The  obligation  of  a  contract  consists  in  its  binding  force  on  the  party 
who  makes  it.  This  depends  on  the  laws  in  existence  when  it  is  made. 
These  are  necessarily  referred  to  in  all  contracts,  and  form  a  part  of  them 
as  the  measure  of  the  obligation  to  perform  them  by  the  one  party  and  the 
right  acquired  by  the  other.  There  can  be  no  other  standard  by  which  to 
ascertain  the  extent  of  either,  than  that  which  the  terms  of  the  contract 
indicate  according  to  their  settled  legal  meaning.  McCracken  v.  Hayward, 
2  How.  608;  Johnson  v.  Duncan,  3  Mart.  531;  Robinson  v.  Magee,  9 
Cal.  8 1  ;  Western  Saving  Fund  v.  Philadelphia,  31  Penn.  175;  Wood  v. 
Wood,  14  Rich.  148. 

The  obligation  of  a  contract  consists  in  the  power  and  efficacy  of  the 
law  which  applies  to  and  enforces  performance  of  the  contract,  or  the  pay- 
ment of  an  equivalent  for  non-performance.  The  obligation  does  not 
inhere  and  subsist  in  the  contract  itself  proprio  vigor  e,  but  in  the  law  ap- 
plicable to  the  contract.  Ogden  v.  Saunders,  12  Wheat.  213. 

Whatever  the  parties  are  authorized  to  and  do  stipulate  for  at  the  time 
of  making  the  contract,  or  whatever  provisions  of  law  are  then  in  force 
regulating  the  contract,  either  as  to  its  construction  or  legal  effect,  or  ma- 
terially advantageous  to  one  party  or  disadvantageous  to  the  other,  as  to 
all  such  the  legislature  has  no  power  afterwards  to  interfere,  to  change 
or  modify  the  rights  and  relations  thereby  established.  Smith  v.  Cleve- 
land, 17  WTis.  556. 

The  law  creates  the  obligation  of  the  contract,  and  whenever  therefore 
the  lex  loci  prescribes  for  the  dissolution  of  the  contract,  in  any  prescribed 
mode,  the  parties  are  presumed  to  have  acted  subject  to  such  contingency. 
Ogden  v.  Saunders,  12  Wheat.  213;  Blanchard  v.  Russell,  13  Mass.  i. 

The  Constitution  embraces  alike  those  laws  which  affect  the  validity, 
construction,  discharge  and  enforcement  of  a  contract,  for  they  enter  into 
and  form  a  part  of  it.  Van  Hoffman  2/.  Quincy,  4  Wall.  535  ;  Walker  v. 
Whithead,  16  Wall.  314;  s.  C.  43  Geo.  537. 

LAWS. 

No  law  passed  before  a  contract  was  made  can  impair  its  obligation. 
As  it  is  the  law  which  gives  to  the  contract  its  obligation,  so  long  as  the 
law  which  was  in  force  at  the  time  the  contract  was  made  continues  the 


LAWS.  123 

same,  the  obligation  of  the  contract  must  remain  the  same,  and  of  course 
can  not  be  impaired.  Blair  v.  Williams,  4  Litt.  34  ;  Bronson  V.  Kinzie,  I 
How.  311  ;  Moore  v.  Fowler,  Hemp.  536  ;  Sparrow  v.  Railroad  Co.  7  Ind. 
369;  Bruns  v.  Crawford,  34  Mo.  330;  Barry  v.  Iseman,  14  Rich.  129; 
Roby  v.  Boswell,  23  Geo.  51  ;  Powers  v.  Dougherty  Co.  23  Geo.65  ;  Davis 
v.  Bronson,  6  Iowa,  410. 

The  Constitution  does  not  prohibit  all  legislation  in  respect  to  contracts. 
It  only  forbids  the  impairing  of  their  obligation.  Thornton  v.  Hooper,  14 
Cal.  9. 

No  act  of  the  legislature  can  alter  the  nature  and  legal  effect  of  an 
existing  contract  to  the  prejudice  of  either  party,  nor  to  give  to  such  a 
contract  a  judicial  construction  which  shall  be  binding  on  the  parties  or  on 
the  courts  of  law.  King  v.  Dedham  Bank,  15  Mass.  447. 

Whether  the  law  professes  to  apply  to  the  contract  itself,  to  fix  a  rule  of 
evidence,  a  rule  of  interpretation,  or  to  regulate  the  remedy,  it  is  equally 
within  the  true  meaning  of  the  Constitution  if  it  in  effect  impairs  the  obli- 
gation of  existing  contracts.  Ogden  v.  Saunders,  12  Wheat.  213. 

A  State  law  may  divest  vested  rights,  and  yet  not  violate  the  Constitu- 
tion, unless  it  also  impairs  the  obligation  of  a  contract.  Charles  River 
Bridge  v.  Warren  Bridge,  1 1  Pet.  420 ;  s.  C.  24  Mass.  344 ;  23  Mass.  376 ; 
Watson  v.  Mercer,  8  Pet.  88 ;  Cochran  v.  Van  Surlay,  20  Wend.  365 ; 
Towle  v.  Forney,  4  Duer,  164. 

Retrospective  laws,  which  do  not  impair  the  obligation  of  contracts  or 
partake  of  the  character  of  ex  post  facto  laws,  are  not  condemned  or  for- 
bidden by  any  part  of  the  Constitution.  Charles  River  Bridge  v.  Warren 
Bridge,  n  Pet.  420;  s.  C.  24  Mass.  344;  23  Mass.  376;  Satterlee  v.  Mat- 
thewson,  2  Pet.  380;  Davis  v.  Ballard,  I  J.  J.  Marsh.  563  ;  Brown  v.  Storm, 
4  Vt.  37  ;  Andrews  v.  Russell,  7  Blackf.  474;  Holman  v.  Bank,  12  Ala. 
369;  Bait.  &  S.  R.  R.  Co.  v.  Nesbit,  10  How.  395;  Wilson  v.  Hardesty, 
i  Md.  Ch.  66;^Albee  v  May,  2  Paine,  74;  Bay  v.  Gage,  36  Barb.  447  ; 
Drehman  v.  Stifle,  41  Mo.  184. 

A  law  may  be  repealed  at  any  time  at  the  will  of  the  legislature,  and 
then  it  ceases  to  form  any  part  of  those  contracts  which  may  afterwards 
be  entered  into.  The  repeal  is  no  more  void  than  a  new  law  would  be 
which  operates  upon  contracts  to  affect  their  validity,  construction  or  dura- 
tion. Both  are  valid  as  they  may  affect  contracts  afterwards  formed,  but 
neither  are  so  if  they  bear  upon  existing  contracts  ;  and  in  the  former  case, 
in  which  the  repeal  contains  no  enactment,  the  Constitution  would  forbid 
the  application  of  the  repealing  law  to  past  contracts,  and  to  those  only. 
Ogden  v.  Saunders,  12  Wheat.  213;  Atwater  v.  Woodbridge,  6  Conn.  223; 
Osborne  v.  Humphrey,  7  Conn.  335  ;  Landon  v.  Litchfield,  11  Conn.  251. 


124  CONSTITUTION    OF    THE    UNITED    STATES. 

A  declaratory,  like  any  other  act,  may  be  unconstitutional,  as  it  impairs 
the  obligation  of  prior  contracts.  Dundas  v.  Bowler,  3  McLean,  397. 

The  body  upon  which  the  prohibition  rests  is  the  legislative  department 
of  the  State.  Trustees  v.  Rider,  13  Conn.  87. 

The  States  have,  since  the  adoption  of  the  Constitution,  the  authority 
to  prescribe  and  declare  by  their  laws  prospectively  what  shall  be  the  obli- 
gation of  all  contracts  made  within  them.  Such  a  power  seems  to  be  al- 
most indispensable  to  the  very  existence  of  the  States,  and  is  necessary  to 
the  safety  and  welfare  of  the  people.  The  whole  frame  and  theory  of  the 
Constitution  seems  to  favor  this  construction.  The  States  were  in  the  full 
enjoyment  and  exercise  of  aW  the  powers  of  legislation  on  the  subject  of 
contracts  before  the  adoption  of  the  Constitution.  The  people  of  the 
States,  in  that  instrument,  transfer  to  and  vest  in  Congress  no  portion  of 
this  power,  except  in  the  single  instance  of  the  authority  given  to  pass  uni- 
form laws  on  the  subject  of  bankruptcies  throughout  the  United  States, 
which  may  be  added  such  as  result  by  necessary  implication  in  carrying 
the  granted  powers  into  effect.  The  whole  of  this  power  is  left  with  the 
I  States,  as  the  Constitution  found  it,  with  the  single  exception  that  in  the 
exercise  of  their  general  authority  they  shall  pass  no  law  "  impairing  the 
obligation  of  contracts."  Ogden  v.  Saunders,  12  Wheat.  213. 

Legislative  powers  over  contracts,  lawfully  existing  when  the  contracts 
are  formed,  affect  the  nature  and  enter  into  the  obligation  of  those  con- 
tracts. But  such  powers  can  be  exerted  only  in  the  particular  cases  in  ref- 
erence to  which  they  have  been  reserved,  and  they  are  inoperative  in  all 
other  cases.  Until  such  a  case  arises,  the  obligation  of  such  a  contract 
can  no  more  be  impaired  than  if  it  were  under  no  circumstances  subject 
to  legislative  control.  Curran  v.  State,  15  How.  304;  s.  C.  12  Ark.  321. 

The  substance  of  the  provision  is  that  no  State  shall  interfere  in  any 
way  with  the  rights  which  citizens  acquire  by  contract.  A  State  Constitu- 
tion is  but  a  higher  grade  of  State  law  than  that  passed  by  the  legislature. 
A  State  convention  has  no  more  power  to  impair  the  obligation  of  contracts 
than  a  legislature.  A  State  Constitution  equally  with  a  statute  is  within 
the  prohibition.  Rutland,  v.  Copes,  15  Rich.  84;  Homestead  Cases,  23 
Gratt.  266;  Moore  v.  111.  Central  R.  R.  Co.  4  C.  L.  N.  123;  Union  Bank 
V.  State,  9  Yerg.  490 ;  Logwood  v.  Planters'  Bank,  Minor,  23 ;  Gunn  v. 
Barry,  15  Wall.  610;  Hazen  v.  Union  Bank,  I  Sneed,  115;  Edwards  v. 
Jagers,  19  Ind.  407 ;  Ex  parte  Oliver  Lee  &  Co.'s  Bank,  21  N.  Y.  9;  Mc- 
Nealy  v.  Gregory,  13  Fla.  417;  Marsh  v.  Burroughs,  I  Woods,  463; 
Hawkins  v.  Filkins,  24  Ark.  286 ;  Jacoway  v.  Denton,  25  Ark.  625. 

The  injunction  is  to  the  sovereignty.  The  whole  people  in  any  capacity 
or  for  any  purpose  assembled,  can  not  constitute  more  than  the  State. 
Such  assemblage  is  but  the  sovereign  power  of  the  State,  and,  of  necessity, 


LAWS.  125 

can  not  be  more  or  greater  than  the  State,  anti,  therefore,  the  prohibition 
is  to  the  sovereignty.  The  prohibition  goes  to  the  power  of  the  State,  and 
not  to  the  manner  or  character  of  her  action.  Jacoway  v.  Denton,  25 
Ark.  625. 

A  rebellious  State  can  not  adopt  a  law  impairing  the  obligation  of  con- 
tracts in  its  Constitution  preparatory  to  the  restoration  of  its  relation  to  the 
Union.  In  re  Sarah  Kennedy,  2  Rich.  (N.  S.)  116;  Calhoun  v.  Calhoun,  2 
Rich.  (N.  S.)  283  ;  Gunn  v.  Barry,  15  Wall.  610;  White  v.  Hart,  13  Wall. 
646 ;  S.  C.  39  Geo.  306. 

Congress  can  not,  by  authorization  or  ratification,  give  the  slightest 
effect  to  a  State  law  or  Constitution  in  conflict  with  the  Constitution  of  the 
United  States.  Gunn  v.  Barry,  15  Wall.  6 10;  In  re  Sarah  Kennedy,  2 
Rich.  (N.  S.)  116;  Calhoun  v.  Calhoun,  2  Rich.  (N.  S.)  283;  White  v. 
Hart,  13  Wall.  646;  S.  C.  39  Geo.  306. 

A  change  of  Constitution  can  not  release  a  State  from  contracts  made 
under  a  Constitution  which  permits  them  to  be  made.  The  moral  obliga- 
tions never  die.  Dodge  v.  Woolsey,  18  How.  331 ;  Mathing  v.  Golden,  5 
Ohio  St.  361. 

The  obligation  of  a  contract  can  not  be  impaired  unwarrantably  by  . 
judicial  decisions  any  more  than  by  legislation.     Township  v.  Talcott,  19 
Wall.  666;  Butz  v.  City,  8  Wall.  575. 

If  a  contract  when  made  is  valid  by  the  laws  of  the  State  as  then  ad- 
ministered  in  its  courts  of  justice,  its  validity  and  obligation  can  not  be^ 
impaired  by  any  subsequent  decisions  of  the  courts  altering  the  construc- 
tion .of  the  law.  Ohio  Trust  Co.  v.  DeBolt,  16  How.  416;  S.  C.  I  Ohio  St. 
563  ;  Lee  Co.  v.  Rogers,  7  Wall.  181 ;  City  v.  Lamson,  9  Wall.  477 ;  Olcott 
v!  Supervisors,  16  Wall.  678;  Gelpcke  v.  Dubuque,  i  Wall.  175;  Have- 
meyer^/.  Iowa  County,  2  Wall.  294;  Thomson  v.  Lee  County,  3  Wall.  327; 
Mitchell  v.  Burlington,  4  Wall.  270 ;  Chicago  v.  Sheldon,  9  Wall.  50 ;  con- 
tra, McClure  v.  Owen,  26  Iowa,  243. 

If  there  is  a  remedy  for  the  enforcement  of  a  contract  at  the  time  when 
it  is  made,  it  can  not  be  taken  away  by  subsequent  judicial  decision.  Butz 
v.  City,  8  Wall.  575. 

A  law  may  be  void  in  part  and  good  in  part,  or  in  other  words  it  may  " 
be  void  so  far  as  it  has  a  retrospective  applicatiorj.  to  past  contracts,  and 
valid  as  applied  prospectively  to  future  contracts.  Ogden  v.  Saunders,  12 
Wheat.  213 ;  Berry  v.  Haines,  2  Car.  L.  Rep.  428;  Comm.  v.  Kimball,  41 
Mass.  359;  Norrisz/.  Boston,  45  Mass.  282;  State  v.  Paul,  5  R.  I.  185; 
Barry  V.  Iseman,  14  Rich.  129. 


126  CONSTITUTION    OF    THE    UNITED    STATES. 


Contracts. 

The  term  contract,  comprises  in  its  full  and  more  liberal  signification 

every  description  of  agreements,  obligations  or  legal  ties  whereby  one 

V-^party  binds  himself,  or  becomes  bound,  expressly  or  impliedly,  to  pay  a  sum 

of  money,  or  perform  or  omit  to  do  a  certain  act.     Woodruff  v.  State,  3 

Ark.  285. 

Whether  the  contract  relates  to  real  or  personal  estate,  is  executed  or 
executory,  or  rests  in  parol,  or  is  under  seal,  the  Constitution  preserves  it 

X  inviolate  from  the  action  of  a  State  legislature  so  far  as  it  creates  rights  or 
contains  obligations  binding  on  the  parties  in  law  or  equity.  Trustees  v. 
Rider,  13  Conn.  87;  Taylors/.  Stearns,  18  Gratt.  244. 

The  provision  has  no  regard  to  the  magnitude  or  values  of  contracts. 
The  obligation  of  no  contract  shall  be  impaired,  whether  it  be  for  much  or 
little.  Gault's  Appeal,  33  Penn.  94. 

The  subject  of  the  prohibition  is  every  contract  relating  to  property  or 
some  object  of  value,  and  which  confers  rights  that  may  be  asserted  in  a 
court  of  justice.  Trustees  v.  Rider,  13  Conn.  87  ;  Regents  v.  Williams,  9 
G.  &  J.  365- 

The  Constitution  recognizes  no  distinction  between  express  and  im- 
plied contracts.  Myrick  v.  Battle,  5  Fla.  345. 

The  contracts  designed  to \  be  protected  are  contracts  by  which  perfect 
rights,  certain,  definite,  fixed  private  rights  of  property  are  vested,  Butler 
v.  Pennsylvania,  10  How.  402. 

The  provision   of   the   Constitution    never  has  been    understood  to 
embrace  other  contracts  than  those  which  respect  property  or  some  object 
y    of  jvalue,  and  confer  rights  which  may  be  asserted  in  a  court  of  justice. 
Dartmouth  College  v.  Woodward,  4  Wheat.  518. 

This  provision  applies  only  to  those  contracts  which  impose  obligations 
under  the  general  principles  of  law.  It  does  not  extend  to  those  which 
are  void  under  the  State  Constitution,  nor  to  those  entered  into  without 
authority  from  the  party  sought  to  be  bound.  People  v.  Roper,  35  N.  Y. 
629. 

All  questions  of  property  are  within  the  jurisdiction  of  the  respective 
States,  and  the  individual  members  thereof,  in  forming  a  government,  are 
not  to  be  considered  as  contractors  with  the  government  thereby  ordained 
in  the  sense  in  which  that  term  is  employed  in  the  Constitution.  It  is  but 
fair  to  suppose  that  individuals  who  sacrifice  or  part  with  a  portion  of  their 
natural  rights  for  the  common  good  of  all,  have  just  reason  to  believe  that 
the  rights  reserved  will  be  respected  or  maintained  inviolate,  but  this  agree- 
ment is  a  social  compact,  and  not  stricti  juris  a  contract.  Billings  v. 
Hall,  7  Cal.  I  ;  State  v.  Paul,  5  R.  I.  185. 


CONTRA 


The  Constitution  does  not  give  validity  to  contracts  which  confer  no 
rights,  nor  add  to  those  which  they  do  confer.  It  prohibits  a  State  from 
impairing  the  obligation  of  a  contract — that  is,  the  rights  and  duties  which 
arise  from  it.  It  does  not  declare  that  every  contract  contains  an  obliga- 
tion, or  that  it  shall  always  be  enforced,  but  it  does  declare  that  whatever 
obligations  are  created  or  rights  secured  shall  not  be  impaired  by  an  act  of 
the  legislature.  It  is  obvious,  therefore,  that  in  every  case  in  which  the 
prohibition  is  attempted  to  be  applied,  the  first  inqliiry  is  whether  the  case 
be  one  in  which  the  subject-matter  is  a  contract  relating  to  property,  or 
some  object  of  value,  and  which  imposes  an  obligation  capable,  in  legal 
contemplation,  of  being  impaired.  If  it  be  such  a  contract,  the  remaining 
inquiry  is  whether  the  act  of  the  legislature  impairs  that  obligation. 
Trustees  z/.  Rider,  13  Conn.  87 ;  Regents  v.  Williams,  9  G.  &  J.  365. 

There  is  a  distinction  between  those  rights  which  the  law  gives  to,  or 
obligations  which  it  imposes  upon,  persons  in  certain  relations  merely  in 
carrying  out  its  own  views  of  policy,  and  independently  of  any  stipulations 
which  the  parties  may  have  made,  and  those  rights  which  the  law  itself, 
even  in  carrying  out  some  matter  of  general  policy,  authorizes  to  be  made 
the  subject  of  express  contract  between  the  parties.  In  the  former  case, 
the  rights  being  derived  entirely  from  the  law,  and  not  from  the  contract, 
laws  changing  them  are  not  within  the  prohibition.  But,  in  the  latter  case, 
although  the  law  authorized  the  rights  to  be  acquired,  yet  it  authorized 
them  to  be  acquired  only  by  a  contract  stipulating  for  them,  and  when  they 
are  so  acquired  the  contract  is  within  the  protection  of  the  Constitution. 
Robinson  v.  Howe,  13  Wis.  341. 

A  claim  arising  out  of  a  tort  and  not  from  a  contract  is  not  within  the 
prohibition  of  this  clause.  Dash  ?/.  Van  Kleek,  7  Johns.  477 ;  Amy  v. 
Smith,  i  Litt.  326  ;  Thayer  v.  Seavey,  1 1  Me.  284. 

It  was  not  necessary,  nor  would  it  have  been  safe,  to  enumerate  par- 
ticular subjects  to  which  the  principle  they  intended  to  establish  should  ap-  x 
ply.  The  principle  was  the  inviolability  of  contracts.  This  principle  was 
to  be  protected  in  whatsoever  form  it  might  be  assailed.  To  what  pur- 
pose enumerate  the  particular  modes  of  violation  which  should  be  forbid- 
den when  it  was  intended  to  forbid  all.  Sturges  v.  Crowninshield,  4 
Wheat.  122. 

A  compact  between  two  States  is  a  contract  within  the  meaning  of  the 
Constitution.  In  fact  the  terms  contract  and  compact  are  synonymous?^ 
Green  v.  Biddle,  8  Wheat.  I ;  Canal  Co.  v.  Railroad  Co.  4  G.  &  J.  I ;  Allen 
T/.  McKeen,  I  Sum.  276 ;  Cox  v.  State,  3  Blackf.  193 ;  Spooner  v.  McCon- 
nell,  i  McLean,  337  ;  Hogg  v.  Canal  Co.  5  Ohio,  410 ;  Achison  v.  Huddle- 
son,  12  How.  293;  s.  C.  7  Gill,  179;  Stokes  v.  Searight,  3  How.  151  ;  Neil 
v.  State,  3  How.  720 ;  State  v.  Wheeling  Bridge  Co.  13  How.  518. 


128  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  can  not  pass  any  law  impairing  the  obligation  of  a  compact 
made  by  it  with  the  United  States.  Lowry  v.  Francis,  2  Yerg.  534. 

If  a  grant  of  land  by  the  United  States  to  a  State  is  on  conditions,  the 
^/  acceptance  of  the  grant  by  the  State  constitutes  a  contract.     McGee  v. 
Mathis,  4  Wall.  143. 

The  character  of  the  parties  to  the  contract  does  not  prevent  the  appli- 
cation of  the  prohibition.  The  contracting  parties,  whoever  they  may  be, 
stand  in  this  respect  upon  the  same  ground.  Trustees  v.  Rider,  13  Conn. 
87  ;  Regents  v.  Williams,  9  G.  &  J.  365. 

Although  the  Constitution  does  not  mention  corporations  by  name,  yet 
they  are  within  it  as  a  part  of  the  general  law,  for  they  are  entitled  to  all 
the  benefits  of  general  laws,  like  natural  persons,  unless  excluded  there- 
from  by  the  charter.  The  contracts  of  corporations,  therefore,  have  the 
^Vfull  guaranty  of  the  Constitution.  Bank  v.  Bank  of  Cape  Fear,  13 
Ired.  75. 

The  questions  as  to  the  nature,  form,  extent,  construction  and  validity 
X  of  contracts  is  left  to  be  determined  by  the  judicial  department  of  the  Gov- 
ernment.    Trustees  v.  Rider,  13  Conn.  87. 

Contract§  with  State§. 

There  is  no  distinction  between  a  contract  by  a  State  and  a  contract  by 
/an  individual.     The  words  are  general,  and  are  applicable  to  contracts  of 
/   every  description.     Fletcher  v.  Peck,  6  Cranch,  87  ;   Derby  Turnpike  Co. 
v.  Parks,  10  Conn.  522  ;  Green  v.  Biddle,  8  Wheat.  I ;  Terrett  v.  Taylor. 
9  Cranch,  43  ;  Pawlett  v.  Clark,  9  Cranch,  292 ;  State  v.  Wilson,  7  Cranch, 
164;  S.  C.  2  N.  J.  300;  Woodruffs.  State,  3  Ark.  285  ;  Trustees  v.  Rider, 
13  Conn.  87  ;  Astrom  v.  Hammond,  3  McLean,  107  ;    Woodruff  v.  Trap- 
nail,  10  How.  190;  s.  C.  8  Ark.  236;    Stanmire  v.   Taylor,  3  Jones  (N. 
C.)  207. 

Impairing. 

To  impair  means  to  alter,  so  as  to  make  the  contract  more  beneficial 
to  one  party  and  less  so  to  the  other,  than  by  its  terms  it  purports  to  be. 
Baily  v.  Gentry,  i  Mo.  164. 

The  impairing  of  contracts  must  mean  their  partial  rescindment  by 
legislative  authority.  Grimball  v.  Ross,  T.  U.  P.  Charlt.  175. 

Any  measure  which  lessens  the  value  of  contracts,  that  gives  them  a 
diminished  value,  takes  from  them  any  of  the  essential  properties  of  con- 
tracts, or  which  divests  them  of  that  priority  of  lien,  obligation  or  recovery 
which  they  would  otherwise  possess,  impairs  the  obligation.  Grimball  v. 
Ross,  T.  U.  P.  Charlt.  175. 


IMPAIRING.  129 

One  of  the  tests  that  a  contract  has  been  impaired  is  that  its  value  has 
by  legislation  been  diminished.  Planters'  Bank  v.  Sharp,  6  How.  301 ;  s. 
c.  12  Miss.  28. 

It  is  not  every  statute  which  affects  the  value  of  a  contract  that  impairs 
its  obligation.  Curtis  v,  Whitney,  13  Wall.  68. 

There  is 'no  difference  in  principle  between  a  law  that  in  terms  impairs 
the  obligation  of  a  contract,  and  one  that  produces  the  same  effect  in  the 
construction  and  practical  execution  of  it.  Canal  Co.  v.  Railroad  Co.  4 
G.  &  J.  i. 

To  be  in  conflict  with  the  Constitution  it  is  not  necessary  that  the  act 
of  the  legislature  should  import  an  actual  destruction  of  the  obligation  of/ 
contracts.     It  is  sufficient  that  the  act  imports  an  impairment  of  the  obliga-  7 
tion.     If  by  the  legislative  act  the  obligation  of  contracts  is  in  any  degree/ 
impaired,  or  what  is  the  same  thing,  if  the  obligation  is  weakened  or  rendered  I 
less  operative,  the  Constitution  is  violated,  and  the  act  is  so  far  inoperative. 
Lapsley  v.  Brashears,  4  Litt.  47. 

Obligation  and  right  are  correlative  terms.     Whenever  there  exists  a/ 
right  in  one  person  there  is  a  corresponding  obligation  upon  some  other' 
person.     In  the  same  proportion  as  the  legal  obligation  is  diminished,  sus-f 
pended  or  entirely  destroyed  by  relaxing,  suspending  or  abolishing  thei 
legal  remedy,  so  in  the  same  proportion  is  the  legal  right  either  impaired  or 
destroyed.     Lapsley  v.  Brashears,  4  Litt.  47 ;  McCracken  v.  Hayward,  2 
How.  608. 

A  law  which  authorizes  the  discharge  .of  a  contract  by  a  smaller  sum  or 
at  a  different  time,  or  in  a  different  manner  than  the  parties  have  stipulated, 
impairs  its  obligation  by  substituting  for  the  contract  of  the  parties  one 
which  they  never  entered  into,  and  to  the  performance  of  which  they,  of 
course,  had  never  consented.  The  old  contract  is  completely  annulled, 
and  a  legislative  contract  imposed  upon  the  parties  in  lieu  of  it.  The  de- 
gree of  injury  to  the  creditor  may  not  be  so  great  as  where  the  contract  is 
declared  to  be  void,  but  the  principle  is  the  same.  Golden  v.  Prince,  3 
Wash.  313  ;  5  Hail  L.  J.  502;  Edmondson  v.  Ferguson,  n  Mo.  344. 

The  language  and  meaning  of  the  inhibition  were  designed  to  embrace 
proceedings  attempting  the  interpolation  of  some  new  term  or  condition 
foreign  to  the  original  agreement,  and  therefore  inconsistent  with  and  vio- 
lative  thereof.  West  River  Bridge  Co.  v.  Dix,  6  How.  507;  S.  C.  16  Vt. 
446;  McCauley  v.  Brooks,  16  Cal.  n. 

Whatever  law  releases  one  party  from  any  article  of  a  stipulation  vol- 
untarily and  legally  entered  into  by  him  with  another,  without-  the  direct 
assent  o.f  the  latter,  impairs  its  obligation,  because  the  rights  of  the  creditor 
are  thereby  destroyed,  and  these  are  ever  correspondent  to  and  co-extensive  ; 

9 


130  CONSTITUTION    OF    THE    UNITED    STATES. 

with  the  duty  of  the  debtor.      Jones  v.  Crittenden,  i   Car.  L.  Rep.   385  ; 
\  Tovvnsend  v,  Townsend,  Peck,  I  ;  Pool  v.  Young,  7  Mon.  587  ;  Greenfield 
v.  Dorris,  I  Sneed,  548. 

v  The  obligation  of  a  contract  may  be  impaired  without  being  entirely 
destroyed.  The  last  must  include  the  first,  but  the  first  does  not  neces- 
sarily include  the  latter.  A  statute  can  no  more  destroy  than  it  can  impair 
the  obligation  of  a  contract.  Robinson  v.  Magee,  9  Cal.  Si. 

This  provision  does  not  prohibit  all  legislation  in  regard  to  existing 
contracts.  The  effect  of  the  law  must  be  looked  to  in  every  instance,  and 
if  it  diminish  the  binding  force  of  the  contract  on  the  party  who  makes  it, 
then  it  is  obnoxious  to  the  Constitution,  otherwise  not.  Nevitt  v.  Bank,  14 

Miss.  513. 

• 

A  contract  is  not  to  be  impaired  at  all.     This  is  not  a  question  of  de- 
v.gtee  or  manner  or  cause,  but  of  encroaching  in  any  respect  on  its  obligation, 
^dispensing  with  any  part  of  its  force.      Planters'  Bank  v.  Sharp,  6  How. 
301;    S.  C.   12  Miss.  28;    Walker  v.  Whithead.  16  Wall.  314;    S.  C.  43 
Geo.  547. 

The  objection  to  a  law  on  the  ground  of  its  impairing  the  obligation  of 
a  contract,  can  never  depend  upon  the  extent  of  the  change  which  the  law 
effects  in  it.  Any  deviation  from  its  terms  by  postponing  or  accelerating 
the  period  of  performance  which  it  prescribes,  imposing  conditions  not  ex- 
pressed in  the  contract,  or  dispensing  with  the  performance  of  those  which 
are,  however  minute  or  apparently  immaterial  in  their  effect  upon  the  con- 
tract of  the  parties,  impairs  its  obligation.  Green  v.  Biddle,  8  Wheat.  I ; 
Blanchard  v.  Russell,  1 3  Mass.  I  ;  McCracken  v.  Hayward,  2  How.  608 ; 
Commercial  Bank  v.  State,  12  Miss.  439  ;  Winter  v.  Jones,  10  Geo.  190; 
People  v.  Bond,  10  Cal.  563. 

All  legislation  which  materially  affects  the  laws  for  the  enforcement  of 
a  contract  existing  at  the  time  it  is  made,  impairs  the  obligation  of  the  con- 
tract. This  is  the  effect,  although  no  reference  is  made  to  such  laws  by 
the  contract,  as  fully  as  if  they  were  written  out  at  the  time  and  incorporated 
into  it.  Nevitt  v.  Bank,  14  Miss.  513. 

The  legislature  can  not  by  a  subsequent  act  impair  the  obligation  of  a 
contract  by  requiring  the  performance  of  other  conditions  not  required  by 
the  law  of  the  contract  itself.  The  rights  as  well  as  the  intentions  of  the 
parties  are  fixed  by  the  existing  law  ;  therefore  to  require  the  performance 
of  other  conditions  to  make  the  contract  operative,  is  to  impair  its  obliga- 
tion. The  power  to  impose  conditions  after  the  contract  is  once  complete 
and  perfect,  is  nothing  but  the  power  to  impair  its  obligation.  Robinson 
2/.  Magee,  9  Cal.  81. 

The  obligation  of  a  contract  may  be  impaired  by  compelling  either  party 


IMPAIRING.  131 

to  do  more  than  he  has  promised.  An  act  which  should  enforce  payment 
before  the  debt  becomes  due,  would  be  unconstitutional.  The  rights  of 
both  parties  established  by  the  contract  are,  in  the  eye  of  justice,  equally 
sacred.  Jones  v.  Crittenden,  I  Car.  L.  Rep.  385  ;  Townsend  v.  Townsend, 
Peck,  i. 

The  terms  and  conditions  of  executory  contracts  can  not  be  altered  or 
interfered  with  in  any  respect  by  the  legislature.  The  time,  place,  person 
or  thing  to  be  done  can  not  be  changed  by  act  of  assembly^.  Townsend  v. 
Townsend,  Peck,  i. 

Where  the  contract  is  executed,  it  is  impaired  by  a  law  operating  to 
divest  any  right  or  estate  which  has  passed  or  become  vested  under  the 
grant.  Phila.  W.  &  B.  R.  R.  Co.  v.  Bowers,  4  Houst.  506. 

It  is  not  true  that  the  parties  have  in  view  only  the  property  in  posses-  \ 
sion  when  the  contract  is  formed,  or  that  its  obligation  does  not  extend  to  I 
future  acquisitions.  Industry,  talents  and  integrity  constitute  a  fund  which  i 
is  as  confidently  trusted  as  property  itself.  Future  acquisitions^are  there-  I 
fore  liable  for  contracts,  and  to  release  them  Iroiti-lliigliability  impairs  their 
obligation.  Sturges  v.  Crowninshield,  4  Wheat.  122. 

Just  in  proportion  as  delay,  uncertainty,  inadequacy  or  onerous  exac- 
tions characterize  the  remedy,  just  in  that  proportion  is  the  obligation 
actually  diminished  or  impaired.  Wood  v.  Wood,  14  Rich.  148. 

The  civil  laws  of  a  State  can  only  have  operation  co  extensive  with  the 
territorial  limits  of  the  State,  and  the  obligation  which  contracts  derive  from 
those  laws  must  necessarily  be  circumscribed  by  the  same  limits.  It  is, 
therefore,  utterly  impossible  that  an  obligation  derived  from  the  laws  of  one 
State  can  be  impaired  by  the  laws  of  any  other  State.  Lapsley  v,  Brashears, 
4  Litt.  47. 

The  courts  do  refer  to  the  laws  of  the  State  where  the  contract  was 
made  in  deciding  upon  its  nature  and  construction,  but  in  doing  so  they  do 
not  proceed  upon  the  notion  that  the  contract  brings  with  it  the  legal  obli- 
gation which  it  derived  from  the  laws  of  the  State  where  it  was  made.  In 
referring  to  the  laws  of  a  foreign  State,  the  courts  acknowledge  that  all 
persons  are  everywhere  under  a  moral  obligation  to  perform  their  contracts, 
and  go  upon  the  idea  that  wherever  that  moral  obligation  grows  out  of  a 
contract  conforming  to  the  laws  of  the  State  where  it  was  made,  there  is 
through  the  medium  of  remedies  prescribed  by  the  laws  of  the  State  where 
redress  is  sought,  a  legal  force  given  to  that  moral  obligation.  But  there  is 
no  provision  in  the  Constitution  which  requires  each  State  in  the  Union  to 
give  the  same  legal  obligation  to  contracts  made  in  any  State.  The  Con- 
stitution, in  that  respect,  has  prescribed  no  limits  to  the  power  of  the  State. 
Lapsley  v.  Brashears,  4  Litt.  47. 


132  CONSTITUTION    OF    THE    UNITED    STATES. 


State  €ontract§. 

It  is  unquestionably  true  that  one  legislature  can  not,  by  ordinary  legis- 
lation, bind  or  control,  in  any  manner,  subsequent  legislatures.  But  it  is 
/  equally  true  that  by  special  legislation  a  subsequent  legislature  may  be 
\  bound.  Antoni  v.  Wright,  22  Gratt.  833  ;  State  Bank  v.  Knoop,  16  How, 
^369  ;  Ohio  Trust  Co.  v.  Debolt,  16  How.  416  ;  s.  C.  I  Ohio  St.  563;  State 
f.  County  Court,  19  Ark.  360;  State  v.  Bank,  2  Houst.  99  ;  Humphrey  v. 
Pegues,  1 6  Wall.  244  ;  Wilmington  Railroad  v.  Reid,  13  Wall  264;  Tom- 
linson  v.  Branch  Bank,  15  Wall.  460;  Jefferson  Bank  v.  Skelly,  I  Black, 
436 ;  S.  C.  9  Ohio  St.  606 ;  People  v.  Auditor,  7  Mich.  84  ;  Matheny  v. 
Golden,  5  Ohio  St.  361  ;  111.  Cent.  R.  R.  Co.  v.  County,  17  111.  291  ;  State 
Bank?y.  People,  5  111.  303;  Mechanics'  Bank  v.  Debolt,  18  How.  380;  s.  c. 
I  Ohio  St.  591  ;  Camden  &  Amboy  R.  R.  Co.  v.  Commissioners.  18  N.  J. 
71 ;  Daughdrill  v.  Life  Ins.  Co.  31  Ala.  91 ;  State  v.  Commercial  Bank,  7 
Ohio,  125  ;  State  v.  Auditor,  5  Ohio  St.  444;  Ross  County  Bank  i>.  Lewis, 
5  Ohio  St.  447;  Bank  v.  New  Albany,  II  Ind.  139^  States.  Berry,  17  N.  J. 
81 ;  Gardners.  State,  21  N.  J.  557;  Bank  v.  Edwards,  5  Ired.  516  ;  Bank 
v.  Deming,  7  Ired.  55  ;  Municipality  v.  State  Bank,  5  La.  Ann.  394  ;  Dodge 
z/.  Woolsey,  18  How.  331;  Mechanics'  Bank  v.  Thomas,  18  How.  384; 
Johnson  v.  Comm.  7  Dana,  338  ;  contra,  Mott  v.  Penn.  R.  R  Co.  3oPenn. 
9  ;  Norwalk  Co.  v.  Husted,  3  Ohio  St.  586  ;  Toledo  Bank  v.  Bond,  I  Ohio 
St.  622  ;  Exchange  Bank  v.  Hmes,  3  Ohio  St.  I  ;  Milan  &  R.  Plank  Road 
Co.  v.  Husted,  3  Ohio  St.  578 ;  Sandusky  Bank  v.  Wilsor,  7  Ohio  St.  48. 

f  A  State  legislature  can  not  abandon  the  police  power,  or  give  a  vested 
right  to  its  exercise  by  a  co'rporation  or  individual.  Dingman  v.  People,  5 1 
111.  277. 

A  State  may  contract  with  an  individual  by  an  act  of  the  legislature. 
Canal  Co.  v.  Railroad  Co.  4  G.  &  J.  i  ;  Winter  v.  Jones,  10  Geo.  190 ; 
Trustees  z/.  Bailey,  10  Fla.  112. 

Every  contract  with  a  State  presupposes  that  some  consideration  is 
given,  or  is  supposed  to  be  given,  by  the  party — that  the  community  is  to  re- 
ceive from  it  some  public  benefit  which  it  could  not  obtain  without  his  aid. 
Ohio  Trust  Co.  v.  Debolt,  16  How.  416;  s.  C.  I  Ohio  St.  563. 

It  is  not  every  declaration  of  the  present  will  of  the  sovereign  which 
constitutes  a  contract  with  the  individual  citizen.  It  does  not  necessarily 
follow  that  a  law  is  intended  as  a  contract  from  the  use  of  language  appro- 
priate to  a  private  agreement.  The  language  must  be  construed  with 
reference  to  those  who  use  it,  the  subject  to  which  they  apply  it,  the  con- 
text hvwhich  it  is  used,  and  the  purpose  for  which  it  is  employed.  A  gen- 
eral statute  should  not  be  construed  to  be  a  contract  when  it  was  obvious- 
ly designed  only  as  an  expression  of  the  legislative  will,  for  the  time  being, 
in  a  matter  of  mere  municipal  regulation.  When  this  is  the  object  of  the 


STATE    CONTRACTS.  133 

law,  those  who  act  on  the  faith  of  its  provisions  do  so  with  notice  that  it  is 
subject  to  revocation  by  the  State  whenever  the  public  exigencies  may  de- 
mand. People  v.  Roper,  35  N.  Y.  629. 

Laws  passed  in  the  exercise  of  the  ordinary  legislative  power  of  a  State 
are  not  contracts  within  the  purview  of  the  Constitution,  and  laws  which 
amend  or  repeal  them  do  not  fall  beneath  the  constitutional  inhibition. 
State  v.  Dews,  R.  M.  Charlt.  397 ;  Corning  v.  Greene,  23  Barb.  33. 

The  repeal  of  a  statute  before  the  party  has  taken  all  the  steps  neces- 
sary to  give  him  a  right  under  it,  does  not  impair  the  obligation  of  a  con- 
tract. Vanhorne  v.  Dorrance,  2  Ball.  304;  Huntsman  v.  Randolph,  5 
Hay,  263 ;  Brinsfield  v.  Carter,  2  Geo.  143  ;  Mobile  R.  R.  Co.  z/.  State,  29 
Ala.  573 ;  State  v.  Jones,  6  Wis.  334 ;  State  v.  Gray,  4  Wis.  380 ;  Wise  v. 
Rogers,  24  Gratt.  169. 

A  statute  which  implies  a  contract  executory,  depending  upon  the  fur- 
ther action  of  the  legislature  or  its  agents  for  its  execution,  and  which  is 
without  any  consideration  in  fact  or  law,  may,  before  its  execution  and  the 
existence  of  any  consideration,  be  repealed,  for  such  a  contract  does  not 
create  any  rights  or  duties  which  can,  in  legal  contemplation,  be  impaired. 
Trustees  v.  Rider,  13  Conn.  87. 

General  regulations  for  the  descent  and  transmission  of  property  in  case 
of  the  death  of  the  possessor,  to  his  widow,  heirs  and  next  of  kin,  do  not 
constitute  a  contract  with  them  so  as  to  bring  those  laws  within  the  pro- 
hibition of  the  Constitution.  In  re  Lawrence,  5  N.  Y.  Sur.  310. 

A  statute  which  contains  a  contract  is  not  absolutely  unchangeable,  for 
it  is  a  law  as  well  as  a  contract,  and  it  is  of  the  very  nature  of  law  that 
those  of  its  provisions  which  are  merely  legislative  modes  to  give  effect  to 
the  substantial  purposes  of  the  statute  may  need  revision  and  alteration. 
The  details  may,  as  in  other  laws,  be  altered  where  the  alteration  does  not 
affect  the  obligation  of  the  contract.  Thornton  v.  Hooper,  14  Cal.  9. 

A  statute  by  which  a  State  waives  the  privilege  of  sovereignty,  and  per- 
mits itself  to  be  sued,  is  not  a  contract,  but  an  ordinary  act  of  legislation,  • 
Consequently,  the  State  may  withdraw  its  consent  to  such  waiver  whenever 
it  may  suppose  that  justice  to  the  public  requires  it,  even  though  such 
withdrawal  affects  pending  suits.  Beers  v.  State,  20  How.  527 ;  Bank  of 
Washington  v.  State,  20  How.  530  ;  Platenius  v.  State,  17  Ark.  518. 

A  statute  granting  an  annuity  in  consideration  of  public  services 
already  rendered,  is  not  a  contract,  and  may  be  repealed.  Pension  laws 
are  not  contracts.  Dale  v.  Governor,  3  Stew.  387. 

A  statute  taking  from  the  board  of  supervisors  the  power  to  make  con- 
tracts for  the  publication  of  the  delinquent  tax  list,  and  conferring  it  on 
another  officer  before  the  publication  is  commenced,  does  not  impair  the 


134  CONSTITUTION    OF    THE    UNITED    STATES. 

obligation  of  a  contract  previously  made  with  the  board,  for  the  contractor 
must  be  deemed  to  have  acted  with  reference  to  the  fact  that  the  matter 
was  within  the  control  of  the  legislature,  and  that  the  law  might  be 
changed  before  he  would  enter  upon  the  performance  of  the  work.  Pott 
v.  Supervisors,  25  Wis.  506. 

A  statute  offering  a  bounty  to  those  who  do  certain  acts,  is  not  a  con- 
tract except  as  to  those  who  earn  the  bounty  while  it  is  in  force,  and  a  re- 
peal as  to  others  is  valid.  Salt  Co.  z/.  East  Saginaw,  13  Wall.  373;  s.  c.  19 
Mich.  259. 

A  claim  of  personal  exemption  from  taxation,  from  jury  duty  or  mili- 
tary duty,  is  not  in  the  nature  of  a  right  of  property  or  a  corporate  franchise. 
A  general  law  exempting  those  who  have  served  in  the  militia  for  a  certain 
period,  from  taxation,  is  valid.  People  v.  Roper,  35  N.  Y.  629. 

It  is  immaterial  whether  the  instrument  by  which  the  public  faith  is 
pledged,  is  in  its  terms  a  contract  or  in  form  a  mere  legislative  enactment. 
In  either  event  it  is  equally  a  contract  within  the  meaning  of  the  Constitu- 
tion. Bridge  Co.  v.  Hoboken  Land  Co.  13  N.  J.  Eq.  81 ;  S.  C.  I  Wall.  116. 

A  statute  can  not  deprive  a  party  of  a  bounty  which  has  been  already 
earned  under  a  prior  act.  People  v.  Auditor,  9  Mich.  327. 

If  the  laws  in  force  at  the  time  of  the  sale  of  land  by  the  State,  pro- 
vide that  the  purchaser  may  revive  his  contract  after  a  breach  thereof,  by 
paying  the  sum  due,  with  interest,  at  any  time  before  a  second  sale,  this 
privilege  can  not  be  taken  away  by  a  subsequent  act.  Damman  v.  Com- 
missioners, 4  Wis.  414. 

Where  a  contract  is  made  under  authority  of  law,  the  right  acquired 
arises  not  from  the  law  itself,  but  from  the  contract  to  which  it  pertains  as 
an  incident,  and  the  legislature  can  not  divest  the  right  thus  acquired. 
State  v.  Barker,  4  Kans.  379,  435. 

If  a  State  authorizes  a  sale  of  stock  held  by  it,  it  can  not  repeal  the  law 
Rafter  a  sale  has  been  made,  and  thus  deprive  a  purchaser  of  the  means  of 
enforcing  a  contract.     Baldwin  v.  Comm.  1 1  T3ush,  417. 

Where  a  statute  enacts  that  a  corporation  shall  be  responsible  and  ob- 
ligated in  law  to  the  laborers  for  work  performed  under  contractors,  rights 
acquired  while  it  is  in  force  can  not  be  impaired  by  a  subsequent  statute. 
Streubel  v.  Mil.  &  M.  R.  R.  Co.  12  Wis.  67. 

A  statute  which  provides  that  the  coupons  on  a  State  bond  shall  be  re- 
ceivable in  payment  of  all  taxes,  debts  and  dues  to  the  State,  is  a  contract 
with  the  holders,  and  can  not  be  repealed  so  as  to  affect  their  rights.  An- 
toni  v.  Wright,  23  Gratt.  833. 


STATE    CONTRACTS.  135 

A  person  who  has  been  an  officer  in  the  militia  during  the  existence  of 
a  statute  providing  that  such  officers  should  be  exempt  from  militia  duty, 
may  nevertheless  be  compelled  to  serve  in  the  militia  by  a  subsequent 
statute  repealing  the  exemption.  Comm.  v.  Bird,  12  Mass.  443. 

It  was  not  the  purpose  of  this  provision  to  impose  on  the  courts  the 
duty  either  of  interposing  between  the  legislature  and  the  citizens  in  mat- 
ters of  pure  governmental  concern,  of  trammeling  the  States  in  the  exer- 
cise of  their  general  political  powers,  or  of  stamping  municipal  regulations 
for  the  time  being  with  the  seal  of  irrevocability.  People  v.  Roper,  35  N. 
Y.  629. 

Where  a  State  gives  a  contract  for  printing  the  laws  to  one  person  for 
certain  period,  it  can  not  subsequently  make  a  contract  with  another  for 
the  same  work.  State  v.  Barker,  4  Kans.  379,  435. 

A  statute  exempting  the  property  of  municipal  corporations  from  forced 
sale  on  executions,  is  valid  if  no  prior  statute  has  authorized  a  levy 
thereon,  for  at  common  law  no  such  levy  could  be  made.  Oilman  v.  Con- 
tra Costa,  8  Cal.  52. 

If  consolidated  boncfs,  the  payment  of  which  is  secured  by  a  certain 
tax,  are  issued  under  a  statute  to  compromise  outstanding  bonds,  with  a 
provision  that  they  shall  only  be  used  to  take  up  those  bonds,  no  subse- 
quent act  can  authorize  the  diversion  of  such  bonds  to  any  other  use.  Mc- 
Comb  v.  Board  of  Liquidation,  2  Woods,  48;  S.  C.  7  C.  L.  N.  251. 

A  statute  providing  a  redemption  fund  to  meet  municipal  indebtedness, 
may  provide  that  a  preference  shall  be  given  to  the  proposal  that  offers  the 
largest  amount  of  indebtedness  for  the  least  amount  of  money.  Youngs 
v.  Hall,  9  Nev.  212  ;  contra,  Bleakley  z/.  Williams,  20  Pitts.  L.  J.  66. 

A  statute  requiring  the  holders  of  county  warrants  bearing  interest  at 
the  rate  of  ten  per  cent.,  to  surrender  them  and  accept  in  lieu  thereof  bonds 
bearing  seven  per  cent,  interest,  is  void.  Brewer  v.  Otoe  Co.  i  Neb.  373. 

A  statute  providing  that  a  warrant  for  a  municipal  indebtedness  shall 
not  be  deemed  to  be  valid  unless  it  is  presented  to  and  passed  by  commis- 
sioners, is  void,  for  the  creditor  can  not  be  compelled  to  accept  another 
and  different  mode  of  payment  from  that  provided  in  his  contract.  Rose 
v.  Estudillo,  39  Cal.  270. 

A  county  government  is  a  portion  of  the  State  government,  and  the 
county  debt  created  by  authority  of  law  is  a  part  of  the  public  State  debt  ; 
and  in  the  same  manner,  as  there  is  no  remedy  against  the  State,  there 
may  be  none  against  the  county.  A  statute  may,  therefore,  change  the 
mode  and  time  of  paying  the  county  debt.  Hunsaker  v.  Borden,  5  Cal. 
288. 


136  CONSTITUTION    OF    THE    UNITED    STATES. 

If  an  act  passed  to  induce 'the  creditors  of  a  municipal  corporation  to 
surrender  old  bonds  and  take  new  ones,  prohibits  the  issuing  of  bonds 
thereafter  for  any  other  purpose  whatever,  except  in  payment  of  the  bonded 
debt  of  the  corporation,  this  prohibition  becomes  a  part  of  the  contract, 
and  is  not  subject  to  legislative  repeal  or  amendment,  so  as  to  impair  or 
diminish  the  security  of  the  creditors.  Smith  v.  Appleton,  19  Wis.  468. 

If  the  contract  in  its  inception  was  without  a  legal  remedy  for  its  viola- 
tion or  suspension,  the  legislature  may  repeal  a  statute  subsequently  passed 
whereby  a  remedy  was  provided.  Young  v.  Oregon,  I  Oregon,  213. 

The  executory  contracts  of  a  State  have  no  otherthan  a  moral  sanction, 
and  depend  upon  good  faith  for  their  performance.  No  money  can  be 
drawn  without  an  appropriation,  and  no  court  can  compel  the  legislative 
department  to  pass  a  law  to  make  one.  As  there  is  no  legal  remedy  to 
enforce  a  contract  against  a  State,  a  statute  forbidding  the  auditor  to  issue 
warrants  does  not  impair  the  obligation  of  contracts.  Swann  v.  Buck,  40 
Miss.  268. 

A  State  law  providing  for  the  discontinuance  of  work  on  a  public 
building  under  a  contract,  is  valid,  for  it  leaves  the  contractor  his  remedy 
for  damages  for  a  breach  of  the  contract.  Lord  v.  Thomas,  64  N.  Y.  107. 

An  act  of  the  legislature  authorizing  a  municipal  corporation  to  sub- 
scribe to  the  stock  of  a  railroad  corporation  is  not  a  contract.  List  v. 
Wheeling,  7  W.  Va.  501. 

Where  a  fund  is  pledged  for  the  payment  of  municipal  bonds  at  the  time 
of  their  issue,  a  subsequent  statute  can  not  authorize  its  diversion  so  as  to 
impair  the  security  of  the  bondholders.  People  v.  Supervisors,  12  Cal.  300; 
Peoples/.  Woods,  7  Cal.  579;  Western  Saving  Fund  v.  Philadelphia,  31 
Penn.  185  ;  People  v.  Bond,  10  Cal.  563;  People  v.  Tillinghast,  10  Cal. 
584;  English  v.  Supervisors,  19  Cal.  172;  Board  v.  Fowler,  19  Cal.  11  ; 
Trustees  v.  Bailey,  10  Fla.  112. 

If  an  act  authorizing  a  municipal  corporation  to  issue  bonds,  provides 
for  the  levy  and  preservation  of  a  tax  to  pay  the  same,  this  constitutes  a 
contract  with  the  bondholders  which  no  subsequent  ordinance  can  impair. 
Maenhut  V.  New  Orleans,  2  Woods,  108 ;  Ranger  v.  New  Orleans,  2 
Woods,  128. 

If  a  corporation  builds  an  improvement,  under  a  statute  which  provides 
for  the  issue  of  bonds  by  the  State,  to  be  paid  as  fast  as  a  fund  accumulates 
for  that  purpose,  an  act  providing  for  their  redemption  at  less  than  par,  and 
authorizing  a  loan  of  the  fund  if  no  bonds  are  tendered  for  redemption,  is 
void.  Goldsmith  v.  Brown,  5  Oregon,  418. 

Where  a  statute  pledging  certain  property  to  the  payment  of  certain 
debts  of  a  municipal  corporation  only  authorizes  a  public  sale,  a  subsequent 


EXECUTED   CONTRACTS.  137 

act  may  provide  a  new  mode  for  the  disposition  of  those  portions  of  the 
property  which  can  not  be  advantageously  disposed  of  at  public  sale  in 
consequence  of  existing  doubts  as  to  the  title  thereto.  Babcock  v.  Middle- 
ton,  20  Cal.  643. 

If  a  municipal  corporation  obtains  a  loan  by  placing  certain  property  in 
the  hands  of  trustees  as  a  security,  and  at  the  time  promises  not  to  change 
the  selection  or  constitution  of  the  trustees,  it  can  not  subsequently  make 
any  such  change.  Western  Saving  Fund  v.  Philadelphia,  31  Penn.  175; 
S.  C.  31  Penn.  185. 

If  a  statute  authorizing  a  municipal  corporation  to  condemn  land  for 
a  park,  provides  that  the  bonds  issued  to  pay  for  the  same  shall  be  a  lien 
thereon,  ho  subsequent  act  can  authorize  a  sale  of  the  land  free  from  the 
lien,  although  the  proceeds  are  to  be  turned  into  a  sinking  fund  for  the  use 
of  the  bondholders.  Brooklyn  Park  v.  Armstrong,  45  N.  Y.  234. 

If  the  legislature  pledges  certain  property  to  secure  bonds  at  the  time 
of  their  issue,  it  can  not  subsequently  divest  that  lien,  or  postpone  it  to 
others.  Trustees  V.  Beers,  2  Black,  448. 

Executed  Contracts 

A  contract  is  a  compact  between  two  or  more  parties,  and  is  either  ex-   , 
ecutory  or  executed.     An  executory  contract  is  one  in  which  a  party  binds  Y 
himself  to  do  or  not  to  do  a  particular  thing.     A  contract  executed  is  one  / 
in  which  the  object  of  the  contract  is  performed,  and  this  differs  in  nothing  Y 
from  a  grant.     A  contract  executed,  as^  well  as  one  which  is  executory, 
contains  obligations  binding  on  the  parties.     A  grant,  in  its  own  nature, 
amounts  to  an  extinguishment  of  the  right  of  the  grantor,  and  implies  a 
contract  not  to  re-assert  that  right.     Since  then,  in  fact,  a  grant  is  a  con- 
tract executed,  the  obligation  of  which  still  continues,  and  since  the  Con- 
stitution uses  the  general  term  contract  without  distinguishing  between 
those  which  are  executory  and  those  which  are  executed,  it  must  be  con- 
strued to  comprehend  the  latter  as  well  as  the  former.      A  law  annulling 
conveyances  between  individuals,  and  declaring  that  the  grantors  shall 
stand  seized  of  their  former  estates,  would  be  as  repugnant  to  the  Consti- 
tution as  a  law  discharging  vendors  of  property  from  the  obligation  of 
executing  their  contracts  by  conveyances.     Fletcher  v.  Peck,  6  Cranch,  87 ; 
Terrett  v,  Taylor,  9  Cranch,  43  ;  Berrett  v.  Oliver,  7  G.  &  J.  i9i;Mont- 
gomery  v.  Kasson,  16  Cal.  189;  Grogan  v.  San  Francisco,  18  Cal.  590. 

No  consideration  is  necessary  to  render  a  grant  irrevocable.  Derby 
Turnpike  Co.  v.  Parks,  10  Conn.  522. 

If  an  act  of  the  legislature  of  a  State  granting  certain  lands  is  obtained 
by  fraud, and  corruption,  and  the  grantee  conveys  the  land  to  a  bona  fide 
purchaser  for  a  valuable  consideration,  an  act  of  the  legislature  divesting 


138  CONSTITUTION    OF    THE    UNITED    STATES. 

the  rights  of  such  purchaser  will  be  unconstitutional  and  void.     Fletcher 
v.  Peck,  6  Cranch,  87. 

The  grant  of  a  part  of  the  land  under  water,  affords  no  foundation  for 
the  inference  of  an  intention  in  any  manner  to  restrict  or  impair  the  right 
of  the  State  to  dispose  of  or  improve  the  residue,  and  an  improvement 
which  affects  the  flow  of  the  stream  does  not  impair  the  obligation  of  the 
grant  when  the  injury  is  remote  and  consequential.  Lansing  v.  Smith,  8 
Cow.  146;  Hollister  v  Union  Co.  9  Conn.  436. 

The  property  of  an  alien,  purchased  by  him  under  a  special  act  of  the 
legislature,  can  not  be  transferred  to  another  without  his  consent  by  mere 
legislative  power.  Bonaparte  v.  Camden  &  Amboy  R.  R.  Co.  Bald.  205. 

Where  a  religious  corporation  is  under  a  disability  to  convey  by  its 
charter,  a  statute  authorizing  a  sale,  violates  no  contract.  Burton's  Ap- 
peal, 57  Penn.  213. 

A  grant  made  for  the  purpose  of  public  instruction,  religious  or  liter- 
ary, is  not  subject  to  subsequent  legislative  control  any  more  than  if  made 
for  private  use.  Terrett  v.  Taylor,  9  Cranch,  43 ;  Grammar  School  v. 
Burt,  1 1  Vt.  632. 

The  word  irrevocable,  in  a  grant,  adds  nothing  to  its  force.  Without 
that  word  the  grant  would  be  irrevocable.  The  exercise  of  the  right  of 
eminent  domain  is  not  a  revocation  of  the  grant.  111.  &  Mich.  Canal  Co. 
v.  Railroad  Co.  14  111.  314. 

A  State  may  release  its  interestr  in  an  escheated  estate  to  the  occupant, 
although  it  has  agreed  to  give  one  half  thereof  to  an  attorney  who  recov- 
ered it,  for  the  release  only  passes  the  moiety  belonging  to  the  State.  Mul- 
ligan v.  Corbins,  7  Wall.  487. 

If  parties  dedicate  a  square  to  public  use,  the  legislature  can  tiot  au- 
thorize its  sale  and  use  for  a  purpose  foreign  to  the  object  of  the  grant. 
Warren  v.  Mayor,  22  Iowa,  351. 

If  a  party,  by  the  payment  of  the  purchase  money,  has  become  entitled 
under  a  State  law  to  a  grant  of  a  piece  of  land,  the  State  can  not  by  a 
subsequent  act  provide  for  a  forfeiture  of  his  right  unless  he  obtains  the 
grant  within  a  certain  period.  Winter  v.  Jones,  10  Geo.  190  ;  Fogg  v.  Wil- 
liams, 2  Head,  474. 

A  statute  which  declares  that  land  shall  be  forfeited  unless  improve- 
ments are  made  within  a  certain  time,  imposes  a  condition  not  contained 
in  the  grant,  and  is  unconstitutional.  Gaines  v.  Buford,  I  Dana,  481. 

A  statute  giving  the  assent  of  the  State  to  the  purchase  of  lands  by  the 
United  States  is  a  grant  of  a  right  to  purchase,  which  the  State  is  not  at 


EXECUTED    CONTRACTS.  139 

liberty  to  qualify  or  impair  by  any  subsequent  act.     U.  S.  v.  Great  Falls 
Manuf.  Co.  21  Md.  119. 

A  grant  of  land  to  a  railroad  corporation  upon  certain  conditions  which 
are  complied  with  is  an  executed  contract,  and  the  State  can  not  subse-^f 
quently  revoke  the  grant.     Davis  v.  Gray,  16  Wall.  203. 

A  grant  made  by  the  State  of  certain  lands  is  an  executed  contract,  and  J, 
the  State  can  not  pass  any  law  whereby  the  estate  of  those  holding  undep/fvj 
the  grant  will  be  impaired  or  rendered  null  and  void.     Fletcher  v.  Peck,  6 
Cranch,  87  ;  People  v.  Platt,  17  Johns.  195  ;  Games  v.  Buford,  I  Dana,  481 ; 
Grenshaw  v.  Slate  River  Co.  6  Rand.  245. 

If  a  grant  of  lands  includes  both  sides  of  an  unnavigable  river,  the  State 
can  not  by  a  subsequent  law  compel  the  owner  to  alter  a  dam  already 
erected,  so  as  to  allow  of  the  passage  of  fish  up  and  down  the  stream. 
People  v.  Platt,  17  Johns.  195  ;  State  v.  Glenn,  7  Jones  (N.  C.)  321 ;  Corne- 
lius v.  Glen,  7  Jones  (N.  C.)  512. 

If  a  mortgage  made  to  a  trustee  provides  a  mode  of  perpetuating  the 
trust,  the  legislature  can  not  by  a  subsequent  act  provide  a  different  mode. 
Fletcher  v.  R.  &  B.  R.  R.  Co.  39  Vt.  535. 

A  statute  allowing  an  occupant  to  recover  compensation  for  improve- 
ments put  by  him  on  the  land,  does  not  impair  the  obligation  of  the  grant 
from  the  State.  Albee  v.  May,  2  Paine,  74;  Armstrongs.  Jackson,  I  Blackf. 
374 ;  Scott  v.  Mather,  14  Tex.  235  ;  corjtra,  Bristoe  v.  Evans,  2  Overt.  341 ; 
Nelson  v,  Allen,  I  Yerg.  360.  • 

A  law  which  restricts  the  rights  of  a  claimant  as  against  an  occupant 
of  land,  in  violation  of  a  compact  between  two  States,  is  unconstitutional. 
Green  v.  Biddle,  8  Wheat.  I  ;  vide  Bodley  v.  Gaither,  3  Mon.  57  ;  Fowler 
V.  Halbert,  4  Bibb,  52  ;  Sanders  v.  Norton,  4  Mon.  464  ;  M'Kinney  v.  Car- 
roll, 12  Pet.  66;  S.  C.  5  Mon.  96  ;  Fisher  v.  Cockerill,  5  Mon.  129. 

A  grant  of  a  ferry  franchise  is  a  contract  the  obligation  of  which  the 
legislature  can  not  impair.  McRoberts  v.  Washburne,  10  Minn.  23. 

The  grantee  of  a  ferry  right  who  pays  no  consideration  for  the  grant, 
takes  it  subject  to  the  power  of  the  legislature  to  regulate  the  rates  of  ferri- 
age. People  v.  Mayor,  32  Barb.  102  ;  State  z/.  Hudson,  23  N.  J.  206  ;  S.  C. 
24N.J.  718. 

If  the  grant  of  a  license  for  a  ferry  is  accompanied  with  a  reservation  of 
the  power  to  a  State  court  to  establish  a  bridge  alongside  of  the  ferry,  the 
legislature  may  make  the  grant  directly  to  another  without  impairing  the 
obligation  of  the  grant  to  the  licensee.  Dyer  v.  Tuscaloosa  Bridge  Co.  2 
Port  296. 

The  Constitution  does  not  prevent  the  legislature  of  any  State  from 


T4O  CONSTITUTION    OF    THE    UNITED    STATES. 

enacting  such  laws  as  may  have  for  their  object  the  application  to  public 
use  of  the  property  of  any  member  of  the  community.  Jackson  z/.  Winn,  4 
Litt.  323  ;  Beekman  v.  Railroad,  3  Paige,  45  ;  Young  v.  McKenzie,  3  Geo. 
31  ;  Bloodgood  v.  Railroad  Co.  18  Wend.  9. 

Private  property  may  be  taken  for  public  use,  but  such  appropriations 
are  constitutional  and  legal  only  when  a  fair  and  just  equivalent  is  awarded 
to  the  owner  of  the  property  so  taken.  People  v.  Platt,  17  Johns.  195; 
Bonaparte  v.  Camden  &  Amboy  R.  R.  Co.  Bald.  205. 

Subjecting  the  land  of  a  grantee  to  the  payment  of  his  debts  does  not 
impair  the  rights  derived  to  him  under  the  grant,  for  in  the  very  act  the 
full  effect  of  the  transfer  of  interest  to  him  is  recognized  and  asserted.  Be- 
cause it  is  his  is  the  direct  and  only  reason  for  subjecting  it  to  his  debts. 
Livingston  v.  Moore,  7  Pet.  469. 

A  grant  by  a  municipal  corporation  upon  certain  conditions  requiring 
large  expenditures,  and  the  assumption  of  onerous  obligations,  and  a  com- 
pliance with  those  conditions,  constitutes  a  contract.  Brooklyn  Central 
R.  R.  Co.  v.  Brooklyn  City  R.  R.  Co.  32  Barb.  358. 

If  a  municipal  corporation  conveys  land  to  an  ecclesiastical  corporation, 
to  be  used  as  a  cemetery,  with  a  covenant  for  quiet  enjoyment,  it  may  sub- 
sequently prohibit  the  use  of  the  premises  as  a  cemetery  for  the  interment 
of  the  dead,  for  it  has  no  power  as  a  party  to  make  a  contract  which  shall 
control  or  embarrass  its  legislative  powers  and  duties.  Presbyterian 
Church  v.  New  York,  5  Cow.  538. 

A  statute  authorizing  a  municipal  corporation  to  issue  bonds,  and  there- 
by bind  the  citizens,  does  not  impair  any  obligation  contained  in  the  grant 
of  land  to  the  individual  citizens  from  the  State.  McCoy  v.  Washington 
Co.  3  Wall.  Jr.  381 ;  s.  C.  3  Phila.  290. 

A  municipal  corporation  can  make  such  contracts  only  as  are  allowed 
by  the  act  of  incorporation,  and  hence  it  can  not  abridge  its  legislative 
power  or  bind  its  legislative  capacities.  Gozzler  v.  Georgetown,  6  Wheat. 
593 ;  Presbyterian  Church  v.  New  York,  5  Cow.  538 ;  Coates  v.  New 
York,  7  Cow.  585. 

Every  right  from  an  absolute  ownership  in  property  down  to  a  mere 
easement,  is  purchased  and  holden  subject  to  the  restriction  that  it  shall  be 
so  exercised  as  not  to  injure  others.  Every  purchaser  is  bound  to  know 
that  his  rights  must  yield  to  regular  remedies  for  the  suppression  of  nui- 
sances. Hence  a  law  may  be  passed  to  prohibit  the  use  of  a  place  as  a 
cemetery,  although  there  is  a  covenant  in  the  grant  that  the  place  may  be 
so  used.  Coates  v.  New  York,  7  Cow.  585. 


CONFIRMATORY    STATUTES.  141 


Registration  Laws. 

It  is  within  the  undoubted  power  of  State  legislatures  to  pass  recording 
acts  by  which  the  elder  grantee  shall  be  postponed  to  a  younger,  if  the 
prior  deed  is  not  recorded  within  a  limited  time,  and  the  power  is  the  same 
whether  the  deed  is  dated  before  or  after  the  passage  of  the  recording  act. 
Though  the  effect  of  such  a  law  is  to  render  the  prior  deed  fraudulent  and 
void  against  a  subsequent  purchaser,  it  is  not  a  law  impairing  the  obliga- 
tion of  contracts.  The  time  and  manner  of  their  operation,  the  exceptions 
to  them,  and  the  acts  from  which  the  time  limited  shall  begin  to  run,  will 
generally  depend  on  the  sound  discretion  of  the  legislature,  according  to  the 
nature  of  the  titles,  the  situation  of  the  country,  and  the  emergency  which 
leads  to  their  enactment.  Jackson  V.  Lamphire,  3  Pet.  280;  Varick  v. 
Briggs,  6  Paige,  323;  s.  C.  22  Wend.  543;  Tucker  v.  Harris,  13  Geo.  I ; 
Boston  v.  Cummins,  16  Geo.  102  ;  Stafford  z/.  Lick,  7  Cal  479  ;  Succession 
of  John  M.  Nelson,  24  La.  Ann.  25  ;  Rochereau  v.  Delacroix,  26  La.  Ann. 
584. 

A  statute  requiring  the  re-registration  of  deeds  already  in  operation,  and 
registered  in  conformity  with  the  laws  in  force  at  its  inception,  does  not 
impair  the  obligation  of  contracts.  Miles  v.  King,  5  Rich.  N.  S.  146. 


Confirmatory  Statutes. 

An  act  confirming  deeds  defectively  acknowledged  does  not  impair  the 
obligation  of  contracts.  So  far  as  it  has  any  legal  operation,  it  goes  to 
confirm  and  not  to  impair  the  contracts  of  the  grantors.  It  gives  the  v 
effect  to  their  acts  and  contracts  which  they  intended  to  give,  and  which 
from  mistake  or  accident  has  not  been  effected.  Brinton  v.  Sievers,  12 
Iowa,  389 ;  Watson  v.  Mercer,  8  Pet.  88  ;  Bell  v.  Perkins,  Peck,  261  ; 
Barnet  v.  Barnet,  15  S.  &  R.  72  ;  Tate  v.  Stooltzfoos,  16  S.  &  R.  35  ; 
Dulany  v.  Tilghman,  6  G.  &  J.  461  ;  Maxey  v.  Wise,  25  Ind.  I ;  Raverty  V. 
Fridge,  3  McLean,  230;  Hughes  v.  Cannon,  2  Humph.  589;  Barton  v. 
Morris,  1 5  Ohio,  408 ;  Bethune  v.  Dougherty,  30  Geo.  770  ;  Dentzel  v. 
Waldie,  30  Cal.  138  ;  Journeay  v.  Gibson,  56  Penn.  57;  Chesnut  v.  Shane, 
15  Ohio,  599;  contra,  Pearce  v.  Patton,  7  B.  Mon.  162. 

A  statute  confirming  a  defective  levy  and  sale  under  an  execution,  does 
not  impair  the  obligation  of  a  contract.  Mather  v.  Chapman,  6  Conn.  54; 
Beach  v.  Walker,  6  Conn.  190;  Booth  z/.,  Booth,  7  Conn.  350;  Bell  v. 
Roberts,  13  Vt.  582  ;  Menges  v.  Wertman,  I  Penn.  218  ;  Norton  v.  Petti- 
bone,  7  Conn.  319 ;  Selsby  v.  Redlon,  19  Wis.  17. 

The  legislatures  of  the  States  may  pass  a  law  confirming  the  doings  of 
courts  and  other  public  bodies  known  to  the  law.  Locke  v,  Dane,  9  Mass. 
360;  Walters  v.  Bacon,  8  Mass.  468;  Patterson  v.  Philbrook,  9  Mass. 


142  CONSTITUTION    OF    THE    UNITED    STATES. 

151  ;  Goshen  v.  Stonington,  4  Conn.  310;  Underwood  v.  Lilly,  10  S.  &  R. 
97;  Simmons  v.  Hanover,  40  Mass.  188;  Kearney  v.  Taylor,  15  How. 
494  ;  Davis  z/.  State  Bank,  7  Ind.  316  ;  Thornton  v.  McGrath,  i  Duvall, 
349- 

A  statute  confirming  an  illegal  assignment  of  the  limits  of  a  jail,  will 
defeat  all  liability  upon  a  jail  bond  executed  after  the  assignment,  but  be- 
fore the  passage  of  the  law,  when  the  alleged  escape  was  simply  an 
entrance  into  the  limits  so  assigned.  Locke  v.  Dane,  9  Mass.  360 ;  Walter 
77.  Bacon,  8  Mass.  468  ;  Patterson  v.  Philbrook,  9  Mass.  151. 

A  statute  which  renders  a  judgment  valid,  which  was  entered  upon  a 
verdict  rendered  after  the  expiration  of  the  term,  is  constitutional.  Tilton 
v.  Swift,  40  Iowa,  78. 

A  statute  confirming  a  defective  judgment  does  not  impair  the  obliga- 
tion of  any  contract.  Underwood  v.  Lilly,  10  S.  &  R  97. 

A  State  may  by  a  retroactive  act  cure  any  irregularity  or  want  of  au- 
thority in  the  levy  of  a  tax,  and  thereby  flivest  a  right  of  action  vested  in 
an  individual  who  has  paid  the  tax  under  protest.  Grim  v,  Weissenberg 
School  District,  57  Penn.  433. 

If  the  subscription  of  a  municipal  corporation  to  the  stock  of  a  private 
corporation  is  not  made  in  pursuance  of  the  power  conferred  upon  it  by 
statute,  the  legislature  may  confirm  the  act.  McMillen  v.  Boyles,  6  Iowa, 
304;  Bass  v.  Mayor,  38  Geo.  875;  Han.  &  St.  Jo.  R.  R.  Co.  v.  Marion,  36 
Mo.  294. 

The  legislature  may  validate  municipal  bonds  illegally  issued.  Kunkle 
v.  Franklin,  13  Minn.  127;  Comers/.  Folsom,  13  Minn.  219. 

If  the  act  of  a  municipal  Corporation  in  subscribing  to  the  stock  of  a 
private  corporation  is  void,  the  legislature  may  confirm  the  act.  City  ir. 
Railroad  Co.  15  Conn.  475. 

Marriage. 

Marriage  is  more  than  a  contract.  It  is  a  public  institution.  Hence, 
as  between  husband  and  wife  there  is  no  constitutional  provision  protecting 
the  marriage  itself  or  the  property  incident  to  it  from  legislative  control  by 
general  law  upon  such  terms  as  public  policy  may  dictate.  The  sovereign 
power  may  by  general  enactment  regulate  and  mold  their  relative  rights 
and  duties  at  pleasure.  Noel  v.  Ewing,  9  Ind.  37  ;  Kelly  v.  McCarthy,  3 
Bradf.  7  ;  Thurber  v.  Townsend,  22  N.  Y.  517;  White  v.  White,  5  Barb. 
474- 

This  provision  has  never  been  understood  to  restrict  the  general  right 
of  the  State  legislature  to  legislate  on  the  subject  of  divorces.  Those  acts 


PUBLIC    OFFICERS.  143 

enable  some  tribunal  not  to  impair  a  marriage  contract,  but  to  liberate  one 
of  the  parties  because  it  has  been  broken  by  the  other.  Carson  v.  Carson, 
40  Miss.  349;  Cronisez/.  Cronise,  54Penn.255  ;  Dartmouth  College  v  Wood- 
ward, 4  Wheat.  518;  Maguire  v.  Maguire,  7  Dana,  181 ;  Adams  v.  Palmer, 
51  Me.  480  ;  Starr  v.  Pease,  8  Conn.  541  ;  Tolen  v.  Tolen,  2  Blackf.  407  ; 
Clark  v.  Clark,  10  N.  H.  380;  Townsend  v.  Griffin,  4  Harring.  440;  Cabell 
v.  Cabell,  i  Mete.  (Ky.)  319;  Berthelemy  v.  Johnson,  3  B.  Mon.  90  ;  contra, 
State  v.  Fry,  4  Mo.  120  ;  Bryson  v.  Campbell,  12  Mo.  498  ;  Ponder  v.  Gra- 
ham, 4  Fla.  23. 

A  statute  which  takes  away  the  marital  rights  of  the  husband  does  not 
impair  any  contract.  White  v.  White,  5  Barb.  474 ;  Thurber  v.  Townsend, 
22  N.  Y.  517  ;  contra,  Holmes  v.  Holmes,  4  Barb.  295. 

A  statute  exempting  the  property  of  the  husband,  from  liability  for  the 
debts  of  the  wife  contracted  prior  to  marriage  is  valid.  Fultz  v.  Fox,  9  B. 
Mon.  499. 

A  statute  allowing  a  feme  covert  to  hold  all  property  subsequently  ac- 
quired for  her  own  use,  free  from  the  control  of  her  husband,  is  valid. 
Kelly  v.  McCarthy,  3  Bradf.  7 ;  Starr  v.  Hamilton,  i  Deady,  268. 

A  statute  enlarging  or  abridging  the  wife's  right  of  dower  is  valid. 
Noel  v.  Ewing,  9  Ind.  37;  Barbour  v.  Barbour,  46  Me.  9;  Moore. v. 
Mayor,  8  N.  Y.  no;  Lucas  v.  Sawyer,  17  Iowa,  517  ;  Magee  v.  Young,  40 
Miss.  164. 

A  statute  authorizing  the  surrogate  to  sell  property  so  as  to  pass  to  the 
purchaser  a  title  free  from  the  widow's  dower  is  valid.  In  re  Lawrence,  5 
N.  Y.  Sur.  310. 

The  disability  of  a  feme  covert  to  convey  property  granted  to  her  for 
her  sole  and  separate  use  flows  from  the  nature  of  the  use  vested  in  her  as 
hnplied  in  equity,  and  is  wholly  founded  in  the  law  of  her  relation,  and  not 
in  the  form  of  the  terms  of  the  grant,  and  may  be  removed  by  law  without 
impairing  the  obligation  of  the  grant  contained  in  the  deed.  Jones' Appeal, 
57  Penn  369. 
i 

Public  Officers 

A  public  officer  is  the  mere  creature  of  law  created  by  the  sovereign 
power  of  the  State  for  public  purposes,  as  the  agent  of  the  body  politic  to 
give  effect  to  its  sovereignty  and  carry  into  effect  its  will.  His  office  is  a 
mere  civil  institution,  established  for  public  political  purposes,  and  may  be 
regulated  or  changed  by  society.  The  mere  creature  of  law,  he  holds  not 
by  contract,  and  his  duties  change  with  the  law.  Hence  the  salary  may  be 
diminished  or  abolished  during  the  term  of  his  office.  State  v.  Dews,  R. 
M.  Charlt.  397  ;  People  v.  Auditor,  2  111.  537  ;  Barker  v.  Pittsburgh,  4 
Penn.  49;  Conner  v.  New  York,  2  Sandf.  355 ;  Benford  v.  Gibson,  15  Ala. 


144  CONSTITUTION    OF    THE    UNITED    STATES. 

521 ;  Butler  v.  Pennsylvania,  10  How.  402  ;  State  v.  Smedes,  26  Miss.  47  ; 
Coffin  v.  State,  7  Ind.  1 57 ;  Hall  v.  State,  39  Wis.  79 ;  Hyde  v.  State,  52 
Miss.  665  ;  Gilbert  v.  Commissioners,  8  Blackf.  81  ;  Turpen  v.  Commis- 
sioners, 7  Ind.  172 ;  Comm.  v.  Bacon,  6  S.  &  R.  322  ;  Haynes  v.  State,  3 
Humph.  480  ;  People  v.  Burrows,  27  Barb.  89  ;  Farwell  v.  Rockland,  62 
Me.  296;  Denver  v.  Hobart,  10  Nev.  28;  Phillips  v.  Mayor,  I  Hilt.  483  ; 
Iowa  City  v.  Foster,  10  Iowa,  189  ;  Gilbert  v.  Commissioners,  8  Blackf.  81  ? 
People  v.  Devlin,  33  N.  Y.  269 ;  Swann  v.  Buck,  40  Miss.  268  ;  People  v. 
Lippincott,  67  111.  333  ;  Walker  v.  Dunham,  17  Ind.  483  ;  Walker  v.  Peele, 
1 8  Ind.  264;  Territory  v.  Pyle,  I  Oregon,  149 ;  Bryan  v.  Cattell,  15  Iowa, 
538. 

The  legislature  may  attach  additional  duties  to  a  public  office  without 
increasing  the  compensation  of  the  officer.  Turpen  v.  Commissioners,  7 
Ind  172. 

An  officer  of  a  public  corporation  is  a  public  officer.  Iowa  City  v. 
Foster,  10  Iowa,  189  ;  Augusta  v.  Sweeny,  44  Geo.  463  ;  Comm  v.  Bacon, 
6  S.  &  R.  322. 

License*. 

A  statute  permitting  a  party  to  establish  a  lottery  merely  grants  an 
immunity  which  may  be  withdrawn  if  no  contract  made  with  others  is 
thereby  impaired.  Gregory  v.  Shelby  College,  2  Mete.  (Ky.)  589;  Bass  v. 
Mayor,  Meigs,  421 ;  State  v.  Phalen,  3  Harring.  441 ;  Phalen  v.  Comm.  I 
Rob.  (Va.)  713  ;  S.  C.  8  How.  163;  Freleigh  v.  State,  8  Mo.  606 ;  State  v. 
Sterling,  8  Mo.  697. 

If  a  contract  has  been  made  by  a  party  holding  an  authority  to  establish 
a  lottery,  the  legislature  can  not  impair  the  contract.  Gregory  v.  Shelby 
College,  2  Mete.  (Ky.)  589*;  State  v.  Phalen,  3  Harring.  441 ;  State  v.  Haw- 
thorn, 9  Mo.  389. 

If  no  bonus  is  given  for  a  right  to  establish  a  lottery,  the  legislature 
may  subsequently  levy  a  tax  on  the  franchise.  Wendover  v.  Lexington, 
15  B.  Mon.  258. 

A  license  to  sell  liquor  is  not  a  contVact  between  the  State  and  the 
person  licensed,  but  is  merely  a  temporary  permit  to  do  what  otherwise 
would  be  an  offense  against  the  general  law.  It  is  issued  as  a  part  of  the 
police  system  of  the  State,  and  is  subject  to  modification  or  revocation. 
Calder  v.  Kurby,  71  Mass.  597;  Metropolitan  Board  v.  Barrie,  34  N.  Y. 
657;  Fellz/.  State,  42  Md.  71  ;  State  v.  Holmes,  38  N.  H.  225. 

Although  the  effect  of  a  license  to  practice  law  or  medicine,  or  to  sell 
goods  at  public  auction,  gives  to  the  members  of  the  professions  something 
of  an  exclusive  character,  and  incidentally  confers  valuable  privileges,  yet 


TAXES.  145 

the  design  of  the  license  is  to  protect  the  community  from  the  consequences 
of  a  want  of  professional  qualifications,  and  to  benefit  the  public  by  ena- 
bling the  professions  to  acquire  professional  merits.  Consequently  the 
license  may  be  modified  in  any  manner  which  the  public  welfare  may  de- 
mand. A  tax  upon  such  as  are  licensed  is  not  unconstitutional.  State  v. 
Gazlay,  5  Ohio,  14 ;  Simmons  v.  State,  12  Mo.  268  ;  New  Orleans  v.  Tur- 
pin,  13  La.  Ann.  56;  State  v.  Waples,  12  La.  Ann.  343;  State  v.  Fel- 
lowes,  12  La.  Ann.  344. 

Where  a  foreign  corporation  is  required  to  obtain  a  certificate  before  it 
can  transact  business  in  the  State,  such  certificate  does  not  constitute  a^V 
contract  so  as  to  prohibit  subsequent  taxation  by  the  laws  of  the  State. 
Home  Ins.  Co.  v.  Augusta,  93  U.  S.  116. 

A  statute  requiring  the  oath  of  loyalty  from  an  attorney  docs  not  impair 
the  obligation  of  any  contract.     State  v.  Garesche,  36  Mo.  256. 

Taxes. 

If  the  State,  for  a  valuable  consideration,"  stipulates  that  certain  lands 
shall  be  exempt  from  taxation,  it  can  not  pass  any  law  to  impair  the  obli-.V'' 
gation  of  such  a  contract.      State  v.  Wilson,  7  Cranch,  164;    S.  C.  2  N. 
J.  300- 

If  a  State  in  issuing  scrip  for  land  provides  that  the  land  shall  be  ex-./ 
empt  from  taxation  for  a  certain  period,  it  can  not  repeal  the  exemption  as 
to  lands  paid  for  by  scrip  issued  before  the  repeal.     McGee  v.  Mathis,  4 
Wall.  143. 

If  a  statute  which  provides  that  all  lands  purchased  from  the  United^ 
States  shall  be  exempt  from  taxation  for  a  certain  period  from  the  time  of 
the  purchase,  the  land  can  not  be  taxed  until  the  expiration  of  that  time. 
It  is  different  from  a  statute  merely  exempting  property  from  present  taxa- 
tion. In  the  one  case  there  is  a  specific  contract;  in  the  other  there  is  no 
contract  and  no  obligation  to  extend  the  obligation  beyond  the  present 
time.  Thompson  v.  Holton,  6  McLean,  386. 

*  If  the  privilege  of  exemption  of  taxation  is  annexed  to  the  land  itself,  it  ^Z 
will  pass  to  a  purchaser.     State  v.   Wilson,  7  Cranch,  164;  S.  C.  2  N.  j. 
300. 

A  statute  releasing  a  railroad  corporation  from  a  tax  lawfully  imposed 
upon  it  by  a  municipal  corporation,  impairs  the  obligation  of  the  contract, 
and  is  void.  City  v.  111.  Central  R.  R.  Co.  39  Iowa,  36. 

A  statute  imposing  a  tax  on  a  loan  may  authorize  the  borrower  to  de- 
duct the  amount  of  the  tax  from  the  interest,  for  taxation  does  not  impair 
the  obligation  of  contracts  within  the  meaning  of  the  inhibition.     Maltby 
v.  Reading  &  Col.  R.  R.  Co.  52  Penn.  140. 
10 


146  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  imposing  a  tax  on  a  mortgage  is  valid,  for  it  affirms  the  con- 
tract, and  taxes  the  subject  for  maintaining  it.  Cook  z/.  Smith,  30  N.  J. 
387. 

A  bond  received  as  a  security  for  the  purchase  money  of  property,  or 
for  the  payment  of  a  loan  of  money,  may  be  taxed  to  any  extent  required  by 
the  State  government,  for  all  property  is  taken  subject  to  the  taxes  that 
may  be  laid  by  the  government  which  protects  it.  Weston  v.  Charleston, 
Harp.  340;  s.  C.  2  Pet.  449. 

A  tax  upon  annual  rents  reserved  in  leases  does  not  impair  the  obliga- 
tion of  any  contract.  Loring  v.  State,  16  Ohio,  590;  Livingston  z/.  Hollen- 
beck,  4  Barb.  9. 

A  tax  upon  a  new  subject,  or  an  increased  tax  on  an  old  one,  does  not 
impair  the  obligation  of  a  contract,  although  such  taxation  may  affect  par- 
ticular contracts,  as  it  may  increase  the  debt  of  one  person  and  lessen  the 
security  of  another,  or  may  impose  additional  burdens  on  one  class  and  re- 
lease the  burdens  of  another..  North  Mo.  Railroad  v.  Maguire,  20  Wall. 
46;  S.  C.  49  Mo.  490. 

A  State  may  tax  bonds  issued  by  itself  for  borrowed  money.  Cham- 
paign Bank  z/.  Smith,  7  Ohio  St.  42. 

A  State  tax  upon  bonds  of  a  corporation  held  by  non-residents  is  void, 
'  for  no  law  of  the  State  inconsistent  with  the  terms  of  a  contract  made  with 
or  payable  to  parties  out  of  the  State,  can  have  any  effect  upon  the  con- 
tract while  in  the  hands  of  such  parties  or  non-residents.  State  Tax  on 
Foreign  Held  Bonds,  15  Wall.  300;  contra,  Maltby  z/.  Reading  &  Col.  R.  R. 
Co.  52  Penn.  140;  Susquehanna  CaYial  Co.  z/.  Comm.  72  Penn.  72;  Del. 
R.  R.  Co.  v.  Comm.  66  Penn.  64;  Pittsburgh  F.  W.  &  C.  R  R.  Co.  z/. 
Comm.  66  Penn.  73  ;  s.  C.  3  Brews.  355. 

The  rights  of  a  purchaser  at  a  tax  sale  are  derived  from  the  contract 
which  the  law  authorized  to  be  made  at  the  time  of  the  sale,  and  if  that 
wafi  for  an  absolute  deed,  when  the  time  for  redemption  expires,  a  statute 
which  subsequently  extends  the  time  of  redemption  is, void.  Robinson  v. 
Howe,  13  Wis.  341  ;  Dikeman  z/.  Dikeman,  II  Paige,  484;  contra,  Gault's 
Appeal,  33  Penn.  94. 

A  statute  allowing  a  purchaser  of  land  at  a  tax  sale  to  recover  the 
money  paid  to  the  collector  above  the  taxes  and  costs  does  not,  upon  giv- 
ing him  an  indemnifying  bond,  violate  any  contract  against  the  consent  of 
any  person  whose  consent  is  necessary.  Smith  z/.  Merchand,  7  S.  &  R.  260. 

A  statute  requiring  that  the  holder  of  a  certificate  of  tax  sale  shall  give 
notice  to  the  occupant  of  the  land  of  his  intention  to  apply  for  a  deed  a 
certain  time  before  doing  so,  is  valid.  Curtis  v.  Whitney,  13  Wall.  68. 


BANK    NOTES.  147 

If  the  legislature  does  not  attempt  to  lessen  or  impair  the  effect  of  a  tax 
deed  as  evidence  of  matters  contained  in  it,  or  graft  upon  the  contract 
some  new  conditions,  it  may  regulate  the  mere  form  or  verbiage  of  the 
conveyance  by  an  act  passed  after  the  sale.  Lain  v.  Shepardson,  18  Wis. 
59- 

If  a  tax  deed  by  the  law  existing  at  the  time  of  its  execution  is  conclu- 
sive evidence  of  the  regularity  of  the  sale,  a  subsequent  act  making  it  only 
prima  facie  evidence  is  void.  Smith  v.  Cleveland,  17  Wis.  556. 

Where  a  State  issues  bonds  for  its  debts,  and  provides  that  the  coupons 
shall  be  receivable  for  taxes,  this  provision  can  not  be  repealed  by  a  subse- 
quent act.  Antoni  v.  Wright,  22  Gratt.  833. 

Bank  Nole§. 

If  the  charter  of  a  bank  whose  stock  is  owned  by  the  State,  contains  a    , 
provision  that  the  notes  of  the  bank  shall  be  received  in  payment  of  all  debts  j\ 
due  to  the  State,  a  repeal  of  this  provision  can  not  affect  the  notes  in  cir- 
culation at  the  time  of  the  repeal.     Woodruff  v.  Trapnall,  10  How,  190; 
s.  C.  8  Ark  236 ;  Paup  v.  Drew,  iq  How.  218  ;  s.  €.9  Ark.  205 ;  Trigg  v, 
Drew,  10  How.  224. 

Where  a  statute  at  the  time  of  the  issue  of  the  bills  of  a  bank  founded 
on  the  funds  of  the  State,  provides  that  such  bills  as  are  payable  in  gold  or 
silver  coin  shall  be  receivable  in  payment  of  taxes,  a  law  providing  that 
depreciated  bills  shall  not  be  received  is  valid.  Graniteville  Manuf.  Co.  v. 
Roper,  15  Rich.  138. 

If  a  State,  in  establishing  a  bank  as  a  State  institution,  provides  that  its 
notes  shall  be  receivable  for  taxes  due  the  State,  this  provision  is  a  contract    V 
between  the  State  and  every  noteholder,  the  obligation  of  which  can  not  be 
impaired.     Furman  v.  Nichol,  8  Wall.  44. 

Such  a  guaranty  is  not  a  personal  one.  It  attaches  to  the  note  the  same 
as  if  it  were  written  on  the  back  of  it,  and  goes  with  the  note  into  the 
hands  of  every  holder.  Furman  v  Nichol,  8  Wall  44. 

A  statute  appropriating  the  assets  of  a  bank  whose  capital  was  fur- 
nished by  the  State  to  pay  its  debts,  operates  as  an  assignment,  and  can 
not  be  repealed  by  a  subsequent  act.  Barings  v.  Dabne'y,  19  Wall.  I. 

If  a  bank  is  created,  and  its  capital  furnished  by  the  State,  a  statute  ap- 
propriating its  assets  to  pay  a  debt  of  the  State  guaranteed  by  the  bank,  to 
the  prejudice  of  the  creditors  of  the  bank,  is  void.  Barings  v.  Dabney,  19 
Wall.  i. 

If  the  notes  of  a  bank  are  made  payable  at  a  particular  place,  a  statute 


i 


148  CONSTITUTION    OF    THE    UNITED    STATES. 

which  requires  it  to  receive  them  in  payment  of  notes  of  other  banks  pre- 
sented for  payment  by  it,  is  void  because  it  impairs  the  obligation  of  the 
notes.  Bank  v.  Bank  of  Cape  Fear,  13  Ired.  75. 

A  statute  creating  an  agent  for  a  bank  without  its  knowledge  or  con- 
sent, and  authorizing  that  agent  to  receive  at  his  discretion,  against  the 
consent  of  the  bank,  whatever  currency  he  may  choose  to  receive  in  pay- 
ment of  debts  due  to  the  principal,  and  making  such  payment  a  satisfac- 
tion of  the  debt,  is  void.  Bank  v.  McVeigh,  20  Gratt.  457. 

A  law  which  throws  the  burden  of  proof  on  the  plaintiff,  to  show  that 
bank  bills  which  are  the  cause  of  action  have  never  been  used  in  aid  of 
the  rebellion,  if  the  defendant  will  swear  that  he  has  reason  to  believe  that 
they  were  so  used,  imposes  upon  the  plaintiff  an  impossibility,  and  is  tan- 
tamount to  destroying  the  contract  on  the  simple  oath  of  the  defendant  as 
to  his  belief,  and  is  void.  Marsh  v.  Burroughs,  I  Woods,  463. 

A  statute  which  permits  bank  notes  to  be  tendered  for  a  debt  due  to 
the  bank,  but  assigned  before  the  passage  of  the  statute,  is  unconstitu- 
tional. As  between  the  original  parties  to  a  note,  a  law  of  set-off,  though 
enacted  -subsequently  to  the  execution  .of  the  note,  may  apply  to  it,  for  in 
this  view  it  relates  to  the  remedy.  But  when  the  note  is  in  the  hands  of  a 
bona  fide  assignee,  an  offset  as  between  the  original  parties  to  the  note  can 
not  be  applied  to  it  without  essentially  impairing  the  legal  effect  of  the 
contract  of  assignment.  Dundas  v.  Bowler,  3  McLean,  397. 


Validating  Contracts. 

A  law  which  gives  validity  to  a  void  contract,  does  not  impair  the  obli- 
gation of  that  contract.  To  create  a  contract,  and  to  impair  or  destroy 
one,  do  not  mean  the  same  thing.  Satterlee  v.  Matthewson,  2  Pet.  380 ; 
Hess  v.  Werts,  4  S.  &  R.  356;  Bleakney  v.  Farmers'  Bank,  17  S.  £  R.  64; 
Bridgeport  v.  Railroad  Co.  15  Conn.  475;  Central  Bank  v.  Empire  Stone 
Dressing  Co.  26  Barb.  23. 

A  statute  repealing  a  law  which  prohibited  suits  against  Indians  is 
valid,  and  does  not  impair  the  obligation  of  contracts.  Stokes  z/.  Redman, 
5  R.  I.  405- 

A  statute  which  makes  previous  payments  of  usurious  interest  valid, 
and  allows  the  party  to  retain  them,  does  not  impair  the  obligation  of  the 
contract.  Sparks  V.  Clapper,  30  Ind.  204. 

A  statute  permitting  the  enforcement  of  usurious  contracts  is  valid,  al- 
though it  applies  to  prior  contracts.  Woodruff  v.  Scruggs,  27  Ark.  26  ; 
Town  v.  Peace,  25  Gratt.  I ;  Curtis  v.  Leavitt,  1 5  N.  Y.  9 ;  Welch  v. 
Wadsworth,  30  Conn.  149;  Wood  v.  Kennedy,  19  Ind.  68  ;  Andrews  v. 


MUNICIPAL    ORDINANCES.  149 

Russell,  7  Blackf.  474 ;  Wilson  v.  Hardesty,  i  Md.  Ch.  66 ;  Baugher  v. 
Nelson,  9  Gill,  299 ;  Savings  Bank  v.  Bates,  8  Conn.  505 ;  Grimes  v.  Doe, 
8  Blackf.  371  ;  Savings  Bank  v.  Allen,  28  Conn.  97;  contra,  Morton  V. 
Rutherford,  18  Wis.  298. 

An  act  altering  the  statute  of  frauds,  and  giving  validity  to  a  contract 
which  was  previously  void,  does  not  violate  the  Constitution.  Baker  v. 
Herndon,  17  Geo.  568. 

The  repeal  of  a  statute  prohibiting  stock-jobbing  may  give  validity  to 
prior  contracts.  Washburn  z/.  Franklin,  35  Barb.  599. 

A  statute  requiring  a  municipal  corporation  to  pay  for  the  services  of  an 
officer,  rendered  under  a  prior  act  which  required  that  the  services  should 
be  paid  for  by  other  persons,  does  not  impair  the  obligation  of  a  contract. 
Southworth  z/.  City,  24  La.  Ann.  312. 

A  State  may  make  the  breach  of  a  pre-existing  contract  criminal,  al- 
though it  was  before  only  the  subject  of  a  suit  for  damages.  Blann  v. 
State,  39  Ala.  353. 

A  State  Constitution  which  provides  that  persons  bound  to  service  by 
contract  or  indenture  without  collusion  or  fraud,  shall  be  held  to  the  spe-  i 
cific  performance  of  their  contracts  or  indentures,  although  the  same  were  ( 
void  when  such  State  Constitution  was  adopted,  is  not  in  conflict  with  the  ( 
Constitution  of  the  United  States.     Phoebe  v.  Jay,  Breese,  207. 

municipal  Ordinances 

There  is  a  distinction  between  a  municipal  ordinance  for  the  public 
•safety  or  good,  and  an  ordinance  for  the  pecuniary  benefit  of  the  corpora- 
tion itself.  An  ordinance  requiring  a  license  fee  after  the  granting  of  a 
right  to  run  street  cars  in  a  city,  is  void.  Mayor  v.  Second  Av.  R.  R.  Co. 
34  Barb.  41. 

A  municipal  corporation  can  not  revoke  a  donation  actually  made,  or 
impose  new  terms  or  duties  upon  the  donee.  Louisville  v.  University,  1 5 
B.  Mon.  642. 

The  repeal  of  an  ordinance  of  a  municipal  corporation  requiring  a 
bond  from  an  auctioneer,  can  not  destroy  or  affect  any  right  which  was  ac- 
quired by  any  person  under  the  ordinance.  McMechen  v.  Mayor,  2  H.  & 
J-4i. 

When  a  municipal  corporation  engages  in  things  not  public  in  their 
nature,  it  acts  as  a  private  individual — no  longer  legislates,  but  contracts — 
and  is  as  much  bound  by  its  engagements  as  a  natural  person.  Western 
Saving  Fund  v.  Philadelphia,  31  Penn.  185;  Western  Saving  Fund  v. 
Philadelphia,  31  Penn.  175. 


I 


150  CONSTITUTION    OF    THE    UNITED    STATES. 

If  a  municipal  corporation  sells  lots  purporting  to  be  bounded  on  a 
public  street,  the  use  of  such  space  as  a  street  passes  as  appurtenant  to 
the  grant,  and  the  corporation  can  not  afterward  alter  or  defeat  the  dedica- 
tion. Breed  v.  Cunningham,  2  Cal.  361. 


Commercial  Paper. 

A  statute  which  provides  that  if  the  last  day  of  grace  falls  on  a  holi- 
day, the  negotiable  note  or  bill  shall  be  payable  on  the  preceding  day,  is 
valid.  Days  of  grace  make  no  part  of  the  original  contract.  Barlow  v. 
Gregory,  31  Conn.  261. 

A  statute  which  provides  that  an  indorser  shall  be  bound  without  de- 
mand, notice  or  protest,  impairs  the  obligation  of  the  contract.  Farmers' 
Bank  v.  Gunnell,  26  Gratt.  131. 

A  statute  changing  the  mode  of  giving  notice  of  protest  to  indorsers 
is  valid,  and  applies  to  notes  made  prior  to  its  passage.  Levering  v. 
Washington,  3  Minn.  323. 


Special  Instances. 

The  repeal  of  a  law  which  is  contrary  to  the  Constitution  of  the  State 
and  void,  does  not  impair  the  obligation  of  any  contract.  Vanhorne  v. 
Dorrance,  2  Dall.  304 ;  Walker  v.  Tipton,  3  Dana,  3. 

If  a  statute  is  void,  its  repeal  does  not  impair  the  obligation  of  con- 
tracts. Barings  i>.  Dabney,  19  Wall.  I. 

• 

A  vote  of  the  people  authorizing  a  municipal  corporation  to  subscribe 
for  stock  in  a  railroad  corporation  does  not  form  a  contract.  Until  the 
subscription  is  actually  made,  the  contract  is  unexecuted.  List  v.  Wheel- 
ing, 7  W.  Va.  501. 

If  a  railroad  commissioner  merely  has  the  power  to  approve  or  disapprove 
of  the  abandonment  of  a  station,  his  consent  upon  condition  that  the  cor- 
poration build  a  depot  at  another  place,  does  not  constitute  a  contract  that 
binds  the  State.  State  v.  New  Haven  &  N.  R.  R.  Co.  43  Conn.  351. 

An  act  of  the  legislature  is  passed  only  when  it  has  gone  through  all 
the  forms  made  necessary  by  the  State  Constitution  to  give  it  force  and 
validity  as  a  binding  rule  of  conduct  for  the  citizen.  Its  passage  dates 
from  the  time  it  ceases  to  be  a  mere  proposition  or  bill  and  passes  into  a 
law.  It  can  not  impair  a  contract  made  while  it  is  pending  before  the 
executive,  any  more  than  it  can  destroy  a  legal  obligation  existing  before 
it  was  moved  in  by  the  legislature.  Wartman  v.  Philadelphia,  33  Penn. 
202. 


SPECIAL    INSTANCES.  151 

If  a  professor  accepts  an  office  in  a  university  controlled  by  the  State, 
subject  to  law,  his  employment  may  be  terminated  at  the  discretion  of  the 
legislature.  Head  z/.  University,  19  Wall.  526;  s.  C.  47  Mo.  220. 

A  judgment  for  damages  in  a  proceeding  to  appropriate  private  prop- 
erty to  public  uses,  is  not  a  contract,  and  the  State  may  pass  an  act  to  set 
it  aside.  Until  the  property  is  actually  taken  and  the  compensation  is  made 
or  provided,  the  power  of  the  State  over  the  matter  is  not  ended.  Garrison 
v.  Mayor,  21  Wall.  196;  In  re  Broadway,  61  Barb.  483;  s.  C.  49  N.  Y. 
150. 

A  State  law  discharging  a  testamentary  trustee  upon  his  own  request, 
and  appointing  a  new  trustee,  is  valid,  for  no  matter  of  contract  is  involved 
therein.  Williamson  v.  Suydam,  6  Wall.  723. 

A  State  law  imposing  a  tax  on  bonds  and  stocks  of  foreign  corporations 
owned  by  citizens  of  the  State,  is  valid.  Worthington  v.  Sebastian,  25 
Ohio  St.  i  ;  Great  Barrington  v.  Berkshire,  33  Mass.  572;  McKeen  v. 
Northampton,  49  Penn.  519- 

A  law  providing  for  the  distribution  of  the  assets  of  persons  dying  in- 
solvent, is  valid  as  to  the  estate  of  a  person  dying  after  its  passage,  in  the 
case  of  a  judgment  which  was  not  a  lien  upon  the  estate,  for  a  general  cred- 
itor has  no  right  to  any  particular  part  of  the  estate  of  the  debtor.  Deich- 
man's  Appeal,  2  Whart.  395.  ' 

A  statute  which  declares  all  debts  incurred  by  the  State  in  aid  of  a 
rebellion  against  the  Federal  Government  void,  is  valid.  Leak  v.  Commis- 
sioners, 64  N.  C.  132. 

A  statute  providing  for  the  sale  of  lands  held  by  joint  tenants  or  ten- 
ants in  common,  is  valid,  although  it  may  have  the  effect  to  destroy  a  prior 
lease  made  by  one  of  the  tenants.  Richardson  v.  Monson,  23  Conn.  94. 

If  a  license  to  erect  a  dam  in  a  navigable  river  is  defeasible  by  the 
terms  thereof,  it  may  be  modified  or  revoked.  Monongahela  Nav.  Co.  V. 
Coons,  6  W.  &  S.  101 ;  Sus.  Canal  Co.  v.  Wright,  9  W.  &  S  9;  Rundle  v. 
Del.  &  R.  Canal  Co.  14  How.  80;  S.  C.  I  Wall.  Jr.  275;  Pratt  v.  Brown, 
3  WTis.  603;  vide  Glover  v.  Powell,  10  N.  J.  Eq.  211 ;  Crenshaw  v.  State 
River  Co.  6  Rand.  245. 

A  State  legislature  may  authorize  an  administrator  to  apply  to  a  court 
for  a  sale  of  the  real  estate  of  an  intestate  to  pay  his  debts.  Florentine  v. 
Barton,  2  Wall.  210. 

Where  a  deed  of  trust  authorizes  the  trustee,  upon  a  default  in  paying 
certain  notes,  to  sell  the  property,  the  sale  can  not  be  suspended  for  a  fixed 
term.  Taylors.  Stearns,  18  Gratt.  244. 

A  statute  which  releases  the  sheriff  and  his  sureties  from  their  liability 
on  his  official  bond,  is  void.  State  v.  Gatzweiller,  49  Mo.  18. 


152  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  changing  a  joint  bond  into  a  several  bond,  and  permitting  a 
suit  against  the  representatives  of  a  deceased  surety,  is  void.  Fielden  v. 
Lahens,  6  Blatch.  524. 

A  statute  which  releases  a  tenant  from  his  liability  to  pay  rent  under  a 
covenant  in  the  1  ase  where  he  has  been  compelled  to  pay  it  to  the  military 
authorities  of  the  United  States,  is  void.  Clark  v.  Ticknor,  49  Mo.  144. 

A  statute  authorizing  a  party  to  surrender  the  property  for  which  the 
contract  was  made  in  full  discharge  of  his  indebtedness,  is  void.  Aber- 
crombie  v.  Baxter,  44  Geo.  36. 

If  a  mortgage  stipulates  for  priority  for  a  subsequent  loan  to  be  made 
by  the  State,  the  State  may  authorize  another  to  make  the  loan  for  a  longer 
term,  and  without  any  provision  for  a  sinking  fund,  without  impairing  the 
obligation  of  the  contract,  but  not  at  a  higher  rate  of  interest.  Campbell 
v.  T.  £  N.  O.  R.  R.  Co.  2  Woods,  263. 

A  statute  which  provides  that  all  contracts,  without  regard  to  the  terms 
of  payment  made  by  the  parties,  shall  be  payable  in  instalments,  is  void. 
Jacobs  v.  Smallwood,  63  N.  C.  112;  Aycock  v.  Martin,  37  Geo.  124. 

A  statute  authorizing  the  sale  of  property  free  from  incumbrances  before 
the  maturity  of  a  mortgage,  is  void  if  it  expedites  the  payment  of  the  loan. 
Randolph  v.  Middleton,  26  N.  J.  Eq.  543. 

A  statute  allowing  the  plaintiff  to  recover  damages  in  addition  to  the 
usual  interest,  enlarges  the  contract,  and  is  void.  Steen  v.  Finley,  25  Miss. 
535- 

A  statute  allowing  interest  on  a  debt  which  did  not  bear  interest  before 
that  time,  is  void.  Goggans  v.  Turnipseed,  I  Rich.  N.  S.  80. 

An  attempt  to  deprive  a  creditor  of  interest  on  an  overdue  debt,  is  an 

/attempt  to  impair  the  implied  obligation  of  the  contract,  and  unconstitu- 
tional.    Bleakley'v.  Williams,  20  Pitts.  L.  J.  66. 

Interest,  though  an  incident  to  the  debt,  is  impliedly  a  part  of  the  con- 
tract, and  the  contracting  parties  are  to  be  presumed  to  have  had  reference 
to  the  law  as  it  existed  at  the  time  the  contract  was  made,  and  as  a  conse- 
quence no  statute  altering  the  rate  of  interest,  can  be  made  to  affect  con- 
tracts entered  into  before  its  passage.  Myrick  v.  Battle,  5  Fla.  345  ;  Lee 
v.  Davis,  i  A.  K.  Marsh.  397 ;  Bryan  v.  Moore,  I  Minor,  377 ;  Hubbard  v. 
Callahan,  42  Conn.  524. 

A  statute  requiring  an  officer  of  the  State  to  pay  a  higher  rate  of  inter- 
est on  moneys  detained  by  him,  than  was  allowed  at  the  time  the  obliga- 
tion arose,  is  void.  Woodruff  v.  State,  3  Ark.  285. 

A  State  law  depriving  a  lessee  of  an  action  for  forcible  entry  and  de- 


SPECIAL    INSTANCES.  153 

tainer  against  the  lessor  is  valid,  if  the  action  does  not  permit  an  inquiry 
into  the  title,  although  the  lease  stipulates  for  quiet  possession.  Drehman 
v.  Stifle,  8  Wall.  595;  s.  C.  41  Mo.  184. 

A  State  law  which  requires  the  plaintiff  to  prove  the  consideration 
where  the  defendant  files  a  plea  under  oath,  alleging  that  the  obligation  in 
whole  or  in  part  has  been  used  for  an  illegal  purpose,  is  void.  Edwards  v. 
Dixon,  53  Geo.  334. 

A  statute  requiring  a  party  to  establish  the  genuineness  of  his  certifi- 
cate, in  order  to  be  entitled  to  a  survey  and  a  patent  under  it,  is  valid. 
League  v.  De  Young,  n  How.  185. 

The  sureties  upon  the  bond  of  a  public  officer 'can  not  be  made  liable 
for  his  failure  to  discharge  the  duties  of  another  additional  office  imposed 
upon  him  by  an  act  passed  after  the  execution  of  the  bond.  Reynolds  v. 
Hall,  2  111.  35. 

A  statute  prohibiting  a  hazardous  or  pernicious  business  is  valid, 
although  it  affects  prior  contracts.  People  v.  Hawley,  3  Mich.  330. 

If  the  legislature  passes  a  law  which  declares  that  all  contracts  entered 
into  after  its  passage  shall  be  subject  to  the  power  of  future  legislatures,  to 
make  such  changes  in  the  obligations  created  by  them  as  they  may  see  fit, 
it  is  void.  Goenen,  v.  Schroeder,  8  Minn.  387. 

If  a  scholarship,  which  is  a  contract  for  tuition  in  consideration  of  a 
prepaid  subscription,  does  not  name  the  place  where  the  tuition  is  to  be 
given,  the  locality  of  the  college  may  be  changed.  Houston  v.  Jefferson 
College,  63  Penn.  428. 

The  legislature  may  remove  the  seat  of  justice  from  one  place  to  any 
other  place  in  the  county,  although  the  commissioners  appointed  to  select 
the  place  have  made  a  contract  for  the  purchase  of  lands  for  the  site,  or 
received  donations  from  those  interested  in  the  location.  The  designation 
of  a  place  in  which  the  courts  of  a  county  shall  be  held,  the  mode  of 
making  the  selection,  and  of  appointing  the  persons  to  act  on  behalf  of  the 
public  in  procuring  or  disposing  of  land  for  these  purposes,  or  erecting  the 
requisite  buildings,  are  matters  of  political  arrangement  and  expediency, 
and  necessarily  the  subjects  of  legislative  discretion.  Alley  v.  Benson,  8 
Tex.  297;  Adams  v.  Logan,  u  111.  336;  Harris  v.  Shaw,  13  111.  456;  State 
v.  Jones,  i  Ired.  414;  Elwell  v.  Tucker,  I  Blackf.  285  ;  Hamrick  v.  House, 
17  Geo.  56;  Newton  v.  Commissioners,  26  Ohio  St.  61 8;  Armstrongs. 
Commissioners,  4  Blackf.  208;  Moses  v.  Kearney,  31  Ark.  261;  contra, 
State  v.  Perry  Co.  5  Ohio  St.  497. 

A  statute  requiring  a  party  who  has  a  contract  with  the  State  to  sub- 
mit his  claim  to  a  board  of  examiners  for  approval,  is  void.  McCauley  v. 
Brooks,  1 6  Cal.  u. 


•4: 


154  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  mitigating  the  severity  of  the  penalty  in  bonds,  and  allowing 
the  party  injured  to  recover  as  much  as  he  deserves  in  equity  and  good 
conscience  to  receive,  is  valid,  although  it  operates  upon  penalties  and  for- 
feitures previously  incurred.  Potter  v.  Sturdevant,  4  Me.  154. 

The  legislature  can  not  make  the  opinion  of  the  attorney  general  that 
a  contract  is  illegal,  conclusive  upon  the  contractor.  Young  -z/.  Beardsley, 
1 1  Paige,  93. 

A  statute  declaring  contracts  made  during  the  war,  the  consideration 
whereof  was  slaves,  void,  impairs  the  obligation  of  contracts,  and  is  void. 
Roach  v.  Gunter,  44  Ala.  209 ;  McElvain  v.  Mudd,  44  Ala.  48 ;  Fitz- 
patrick  v.  Hearne,  44  Ala.  171  ;  Curry  v.  Davis,  44  Ala.  281  ;  Osborn  v. 
Nicholson,  13  Wall.  654;  Boyce  v.  Tabb,  18  Wall.  546. 

A  provision  in  a  State  Constitution  that  prohibits  the  enforcement  of 
contracts  for  slaves  is  void.  Jacoway  v.  Denton,  25  Ark.  625  ;  Calhoun  z/. 
Calhoun,  2  Rich.  N.  S.  283;  McNealy  v.  Gregory,  13  Fla.  417;  French 
v.  Tomlin,  19  A.  L.  Reg.  641  ;  White  v.  Hart,  13  Wall.  646 ;  S.  C.  39  Geo. 
306;  contra,  Shorter  v,  Cobb,  39  Geo.  285;  Armstrong  v.  Lecompte,  21 
La.  Ann.  528;  Dranguet  v.  Rost,  21  La.  Ann.  538. 

A  statute  declaring  contracts,  the  consideration  whereof  was  confed- 
erate currency,  void,  impairs  the  obligation  of  the  contract,  and  is  null. 
Roach  v.  Gunter,  44  Ala.  209;  Delmas  v.  Ins.  Co.  14  Wall.  66 1  ; 
Forscheimer  v.  Holly,  14  Fla.  239;  Marsh  v.  Burroughs,  I  Woods,  463  ; 
Hatch  v.  Burroughs,  I  Woods,  439. 

A  provision  in  a  State  Constitution  declaring  that  all  contracts,  the 
consideration  of  which  was  confederate  money,  notes  or  bonds,  are  void, 
is  invalid.  Delmas  «/.  Ins.  Co.  14  Wall.  66 1. 

A  statute  which  declares  that  a  certain  consideration  shall  be  deemed 
to  be  void,  impairs  the  obligation  of  contracts  based  thereon.  McNealy  v. 
Gregory,  13  Fla.  417. 

A  statute  which  enacts  that  a  party  holding  a  contract  which  was  in- 
tended to  be  paid  in  confederate  money,  or  other  paper  currency,  shall  only 
recover  the  value  of  the  confederate  money  or  other  paper  at  the  time  of 
the  making  of  the  contract,  with  interest,  is  void,  for  it  allows  a  party  by 
parol  to  set  up  another  and  different  contract  from  that  which  the  writing 
imports.  Leach  v.  Smith,  25  Ark.  246;  Woodruff  v.  Tilly,  25  Ark.  309. 

If  a  contract  is  made  payable  in  confederate  notes,  a  statute  whic'h  per- 
mits the  jury  to  render  a  verdict  according  to  the  value  of  the  considera- 
tion, and  not  according  to  the  value  of  the  currency,  is  void,  for  it  sub- 
stitutes the  judgment  of  the  jury  upon  the  value  of  the  contract  for  the 
value  stipulated  by  the  parties.  Wilmington  &  Weldon  R.  R.  Co.  v. 
King,  91  U.  S.  3. 


STATE    INSOLVENT    LAWS.  155 

A  State  law  requiring  the  plaintiff  to  prove  the  consideration,  when  the 
defendant  files  a  plea  alleging  that  the  obligation,  in  whole  or  in  part,  has 
been  used  for  an  illegal  purpose,  is  void,  when  applied  to  a  suit  by  the 
holder  of  a  bank  bill  against  a  stockholder  under  a  charter  granted  prior  to 
the  act.  Branch  v.  Baker,  53  Geo.  502. 

A  statute  allowing  a  guardian  to  sell  his  real  estate  and  invest  the  pro- 
ceeds in  other  securities  for  the  protection  of  the  infants,  is  valid,  although 
a  prior  statute  made  their  claim  a  lien  on  the  land.  Lobrano  v.  Nelligan, 
9  Wall.  295. 

A  statute  repealing  a  law  imposing  a  personal  liability  upon  the  stock-  . 
holders  for  the  debts  of  the  corporation,  can  not  affect  debts  contracted  be-  N 
fore  its  passage.  Conant  v.  Van  Shaick,  24  Barb.  87  ;  Hawthorne  v.  I 
Calif,  2  Wall.  10;  contra,  Coffin  v.  Rich,  45  Me.  507. 

A  statute  may  relieve  stockholders  who  subsequently  subscribe  from 
personal  liability  for  the  debts  of  the  corporation,  although  the  debts  were  J( 
contracted  under  a  law  which  made  stockholders  personally  liable.     Ochil- 
tree  v.  Railroad  Company,  21  Wall.  249. 

State  Insolvent  Laws. 

An  insolvent  law  which  releases  the  debtor  from  a  debt  contracted    * 
prior  to  its  enactment,  impairs  the  obligation  of  the  contract,  and  is  un-^ 
constitutional.     Sturges  v.  Crowninshielcl,  4  Wheat.  122;  Oldens  v.  Hal- 
let,  5  N.  J.  466  ;  Boardman  v.  De  Forrest,   5  Conn,   i ;  Farmers'  Bank  v. 
Smith,  6  Wheat.  131 ;  S.  c.  3  S.  &  R.  63;  Roosevelt  v.  Cebra,  17  Johns. 
1 08  ;  Post  V.  Riley,  18  Johns.  54;  Golden  v.  Prince,  3  Wash.  313;  5  Hall 
L.  J.  502 ;  In  re  Wendell,  19  Johns.  153;  contra,  Adams  v.  Storey,  I  Paine, 
79;  Barbers.  Minturn,  i  Day,  136. 

If  the  law  of  the  State  at  the  time  the  contract  was  made  in  effect  pro- 
vided that  the  obligation  of  the  contract  should  not  be  absolute,  but  quali- 
fied by  the  condition  that  the  party  should  be  discharged  upon  his  becom- 
ing insolvent  and  complying  with  the  requisitions  of  the  insolvent  law,  the 
qualification  attached  to  the  contract  by  law  the  moment  the  contract  was  ; 
made,  became  inseparable  from  it,  and  traveled  with  it  through  all  the  \ 
stages  of  its  existence,  until  the  condition  was  consummated  by  the  final 
certificate  of  discharge.     Ogden  v.  Saunders,  12  Wheat.  213. 

A  discharge  under  a  State  insolvent  law  is  valid  where  the  contract  was 
made  between  citizens  of  the  State  under  whose  law  the  discharge  was  ob-  *" 
tained  after  the  enactment  of  the  law.  Ogden  v.  Saunders,  12  Wheat.  213 ; 
Mather  v.  Bush,  16  Johns.  233  ;  Blanchard  v.  Russell,  13  Mass,  i  ;  Baker 
v.  Wheaton,  5  Mass.  509 ;  Smith  v.  Parsons,  i  Ohio,  236;  Walsh  v.  Far- 
rand,  13  Mass.  19;  Pugh  v.  Bussel,  2  Blackf.  366  ;  Wilson  v.  Matthews,  32 
Ala.  332 ;  Alexander  v.  Gibson,  i  N.  &  McC.  480 ;  Jacques  v.  Marchand, 


156  CONSTITUTION    OF    THE    UNITED    STATES. 

6  Cow.  497  ;  contra,  Vanuxem  v.  Hazlehursts,  4  N.  J.  192  ;  Smith  v. 
Mead,  3  Conn.  253;  Hammett  v.  Anderson,  3  Conn.  304;  Herrings. 
Selding,  2  Ark.  12;  Medbury  v.  Hopkins,  3  Conn.  472;  Hinkley-z/.  Marian, 
3  Mason,  88  ;  Ballantine  v.  Haight,  16  N.  J.  196. 

The  proof  of  the  debt,  and  the  receiving  of  a  dividend  under  proceed- 
ings in  insolvency  under  an  act  which  is  void  as  against  antecedent  credit- 
ors, will  not  give  validity  to  a  discharge  otherwise  void.  An  act  of  the 
legislature  which  it  has  no  constitutional  right  or  power  to  pass,  is  a  nul- 
lity, and  all  proceedings  under  it  are  void.  The  acts  of  individual  citizens 
can  give  no  force  or  effect  to  them.  Kimberly  v.  Ely,  23  Mass.  440 ;  Ham- 
mett v.  Anderson,  3  Conn.  304 ;  contra,  Van  Hook  v.  Whitlock,  26  Wend. 
43  ;  S.  e.  7  Paige,  376. 

A  discharge  not  valid  under  the  Constitution  in  the  Federal  courts,  is 
equally  invalid  in  the  State  courts.  Ogden  v.  Saunders,  12  Wheat.  213  ; 
Frey  v.  Kirk,  4  G.  &  J.  509;  Shaw  v.  Robbins,  12  Wheat.  369  n.;  Cook 
Moffat,  5  How.  295 ;  Poe  v.  Duck,  5  Md.  I  ;  Spear  v.  Peabody,  loLa.  Ann. 
146 ;  Fisher  v.  Wheeler,  5  La.  Ann.  271  ;  Beers  v.  Rhea,  5  Tex.  349 ;  con- 
tra, Atwater  v.  Townsend,  4  Conn.  47 ;  Smith  v.  Healy,  4  Conn.  49. 

The  power  of  the  State  over  the  contracts  of  its  citizens  is  not  limited 
by  the  power  to  make  them  parties  to  the  proceedings  in  insolvency,  for  the 
insolvent  law  qualifies  the  contract  from  its  inception.  Stoddard  v.  Har- 
rington, 100  Mass.  87. 

If  a  foreign  debtor  removes  to  the  State  where  the  creditor  resides,  and 
there  obtains  a  discharge,  it  will  be  valid  against  the  creditor,  for  he  is 
bound  by  the  laws  of  his  own  State.  Beal  v.  Burchstead,  64  Mass.  523. 

If  the  indorsee  and  the  maker  of  a  note  reside  in  the  State  at  the  time 
when  the  discharge  is  granted,  the  discharge  will  bar  the  debt,  although 
the  payee  was  a  citizen  of  another  State.  Wheelock  v.  Leonard,  20  Penn. 
440. 

If  both  parties  are  citizens  of  the  State,  a  discharge  will  be  a  bar  to  the 
debt,  although  the  contract  was  made  and  was  to  be  performed  in  another 
State.  Marsh  v.  Putnam,  69  Mass.  551 ;  contra,  Smith  v.  Mead,  3  Conn. 
253- 

If  a  citizen  of  the  State  under  whose  lawrs  the  discharge  was  granted 
had  previously  obtained  a  judgment  in  his  own  State,  and  then  recovered 
judgment  in  an  action  in  another  State  upon  the  first  judgment,  the  dis- 
charge will  release  the  debtor  from  both  judgments.  Brest  v.  Smith,  5 
Biss.  62. 

The  discharge  will  bar  the  debt  of  a  citizen  of  the  same  State,  although 
it  has  been  merged  in  a  judgment  rendered  in  the  courts  of  another  State. 
Although  a  judgment  for  some  purposes  is  considered  as  a  merger  of  the 


STATE  INSOLVENT  LAWS.  157 

former,  and  as  constituting  a  new  cause  of  action,  yet  when  the  essential 
rights  of  parties  are  influenced  by  the  nature  of  the  original  contract,  the 
courts  will  look  into  the  judgment  for  the  purpose  of  ascertaining  what  the 
nature  of  such  original  cause  of  action  was.  Betts  V.  Bagley,  29  Mass.  572. 

If  a  contract  was  made  between  parties  who  at  the  time  were  not  citizens 
of  the  State,  but  who  became  citizens  of  the  State  before  the  filing  of  the 
petition  for  a  discharge,  the  discharge  will  be  a  bar  to  the  debt.  Hall  v. 
Winchell,  38  Vt.  581  ;  contra,  Witt  v.  Follett,  2  Wend.  457. 

If  the  contract  was  made  in  the  State,  and  was  to  be  performed  in  the 
'State,  and  both  parties  resided  there  at  the  time  the  discharge  was  obtained, 
the  discharge  will  bar  an  action  upon  the  contract  in  the  courts  of  another 
State.  Both  parties  owe  allegiance  to  the  same  laws,  and  by  them  their 
relations  to  each  other  are  governed.  Hempstead  v.  Reed,  6  Conn.  480 : 
Pitkin  v.  Thompson,  30  Mass.  64 ;  Williams  v.  Guignard,  2  How.  (Miss.) 
722 ;  Stone  v.  Tibbetts,  26  Me.  1 10  ;  Hall  v.  Boardman,  14  N.  H.  38  ; 
Wheelock  v.  Leonard,  20  Penn.  440 ;  Urton  v.  Hunter,  2  W.  Va.  83. 

If  the  creditor  is  a  permanent  resident  in  the  State,  both  at  the  time 
when  the  debt  is  created  and  when  the  discharge  is  granted,  the  discharge 
will  be  a  bar  to  his  debt,  although  he  is  an  alien.  Vohn  Glahn  v.  Varrence, 
i  Dillon,  515. 

An  assignment  in  insolvency,  as  against  citizens  of  the  State,  will  pass 
property  situate  in  another  State.  Hoag  v.  Hunt,  21  N.  H.  106. 

A  citizen  of  the  State  where  the  proceedings  in  insolvency  are  pending 
can  not  levy  an  attachment  upon  property  in  another  State.  Wilson  v. 
Matthews,  32  Ala.  332 ;  Smith  v.  Brown,  43  N.  H.  44 ;  Einer  v.  Beste,  32 
Mo.  240. 

A  State  insolvent  law  can  not  dissolve  an  attachment  made  by  a  citizen 
of  the  State  upon  the  property  of  the  debtor  in  another  State.  Upton  v. 
Hubbard,  28  Conn.  274. 

A  creditor  who  has  obtained  a  judgment  may  show  that  the  agreement 
which  was  the  foundation  of  the  judgment  was  made  antecedent  to  the 
passing  of  the  statute,  for  the  purpose  of  taking  it  out  of  the  operation  of 
the  discharge.  Wyman  V.  Mitchell,  I  Cow.  316. 

When  the  States  pass  beyond  their  own  limits  and  the  rights  of  their 
own  citizens,  and  act  upon  the  rights  of  citizens  of  other  States,  there 
arises  a  conflict  of  sovereign  power,  and  a  collision  \vith  the  judicial  pow- 
ers granted  to  the  United  States,  which  renders  the  exercise  of  such  power 
incompatible  with  the  rights  of  other  States,  and  with  the  Constitution. 
Baldwin  v.  Hale,  i  Wall.  223;  s.  C.  I  Cliff.  511. 

Insolvent  laws  of  one  State  can  not  discharge  the  contracts  of  citizens 


158  CONSTITUTION    OF    THE    UNITED    STATES. 

of  other  States,  because  they  have  no  extra-territorial  operation,  and  con- 
sequently the  tribunal  sitting  under  them,  unless  in  cases  where  a  citizen  ^ 
of  such  other  State  voluntarily  becomes  a  party  to  the  proceeding,  has  no 
jurisdiction  in  the  case.  Baldwin  v.  Hale,  I  Wall.  223;  s.  C.  i  Cliff.  511  ; 
Newmarket  Bank  v.  Butler,  45  N.  H  236 ;  Oilman  v.  Lockwood,  4  Wall. 
409  ;  Babcockz/.  Weston,  I  Gallis.  168  ;  Campbell  v.  Claudius,  I  Pet.  C.  C. 
484;  Ballantine  v.  Haight,  16  N.  J.  196  ;  Beers  v.  Rhea,  5  Tex.  349  ;  Cho- 
teau  v.  Richardson,  94  Mass.  368  ;  Collins  v.  Rodolph,  3  Greene  (Iowa), 
299;  Atwater  v.  Townsend,  4  Conn.  47;  Shelton  v.  Wade,  14  Tex.  52; 
Fisher  v.  Wheeler,  5  La.  Ann.  271;  Byrd  v.  Badger,  I  Me  A.  263;  Ken- 
dall v.  Badger,  I  McA.  523;  Ogden  v.  Saunders,  12  Wheat.  213:  Tabor  v. 
Harwood,  5  Harring.  42 ;  Vanuxem  v.  Hazlehursts,  4  N.  J.  192  ;  Whitney 
v.  Whiting,  35  N.  H.  457;  Dinsmore  v.  Bradley,  71  Mass.  487;  Ferrira  v. 
Keevit,  18  Mo.  186  ;  McMillan '  v.  M'Neill,  4  Wheat.  209;  Frey  v.  Kirk,  4 
G.  &  J.  509  ;  Clark  v.  Hatch,  56  Mass.  455  ;  Donnelly  v.  Corbett,  7  N.  Y. 
500;  Pugh  v.  Bussell,  2  Blackf.  366;  Proctors.  Moore,  I  Mass.  139  ;  Smith 
v.  Smith,  2  Johns.  235;  Van  Raugh  v.  Van  Arsdaln,  3  Caines,  154;  Teb- 
betts  v.  Pickering,  59  Mass.  83;  Potters.  Kerr,  I  Md.  Ch.  275  ;  Emory  v. 
Greenough,  3  Dall.  369  ;  Watson  v.  Bourne,  10  Mass.  337  ;  Fiske  v.  Foster, 
51  Mass  597;  Palmer  z/.  Goodwin,  32  Me.  335  ;  Bancher  v.  Fisk,  33  Me. 
316  ;  Hinkley  v.  Marean,  3  Mason,  88;  Bradford  v.  Farrand,  13  Mass.  18; 
Boyle  v.  Zacharie,  6  Pet.  348;  Woodbridge  v.  Wright,  3  Conn.  525  ;  Wood- 
hull  v.  Wagner,  i  Bald.  296 ;  Springer  v.  Foster,  2  Story,  383 ;.  Cook  v. 
Moffat,  5  How.  295;  Norton  v.  Cook,  9  Conn.  314;  Boyle  v.  Turner,  6 
Pet.  635;  contra,  Hale  if.  Ross,  2  Penn.  590;  Blanchard  v.  Russell,  13 
Mass,  i  ;  Adams  v.  Storey,  I  Paine,  79;  Hicks  v.  Brown,  12  Johns.  142; 
Wray  v.  Reily,  i  Cranch  C.  C.  513. 

The  terms  "  citizen  of  another  State,"  "resident  of  another  State,"  and 
"foreign  creditors,"  are  used  in  different  decisions  quite  indiscriminately. 
The  idea  designed  to  be  expressed  is  not  that  State  insolvent  laws  can  not 
operate  z>z/r<z-territorially  upon  all  the  people  or  inhabitants,  or  permanent 
residents  of  a  State,  as  well  as  upon  native  or  naturalized  citizens,  but  that 
such  laws  can  have  no  extra-territorial  effect  so  as  to  operate  upon  the 
rights  of  non-residents  of  the  State.  Vohn  Glahn  v.  Varrence,  i  Dillon, 
515  ;  Pratt  v.  Chase,  44  N.  Y.  597;  S.  c.  19  Abb.  Pr.  150. 

If  the  creditors  are  residents  of  another  State,  the  discharge  will  not 
release  the  debt.     Whether  they  are  citizens  of  the  United  States  or  for- 
eigners is  of  no  importance,  if  they  are  not  citizens  of  the  State  under  x/ 
whose  laws  the  discharge  is  obtained,  nor  subject  to  its  territorial  jurisdic- 
tion.    Pratt  v.  Chase,  44  N.  Y.  597  ;  S.  C.  19  Abb.  Pr.  150. 

A  temporary  residence  does  not  change  its  character  with  the  lapse  of 
time.  Whether  it  is  longer  or  shorter  it  is  temporary  still.  It  possesses  no 
elements  of  a  superior  state  which  time  will  mature.  Although  the  foreign 
creditor  was  temporarily  residing  in  the  State  at  the  time  when  the  con- 


STATE  INSOLVENT  LAWS,  159 

tract  was  made,  the  discharge  will  not  bar  the  debt  if  he  does  not  reside 
there  when  the  petition  for  a  discharge  is  filed.  Easterly  v.  Goodwin,  35 
Conn.  279. 

The  question  whether  a  contract  made  after  the  passing  of  a  State  in- 
solvent law  is  released  by  a  discharge,  depends  upon  the  citizenship  of  the 
creditor,  and  not  upon  the  place,  where  the  contract  was  made,  or  was  to 
be  performed.  Baldwin  v.  Hale,  i  Wall.  223;  s.  C.  I  Cliff.  511  ;  Hawley 
v.  Hunt,  27  Iowa,  303. 

The  claim  of  a  citizen  of  another  State  will  not  be  barred  by  a  discharge 
under  the  insolvent  laws  of  the  State,  although  the  debt  was  made  payable'" 
in  the  State.  Baldwin  v.  Hale,  I  Wail.  223;  S.  c.  I  Cliff.  511  ;  Baldwins. 
Bank,  i  Wall.  234;  s.  C.  I  Cliff.  519;  Demerritt  v.  Exchange  Bank,  20 
Law  Rep.  606 ;  Newmarket  Bank  v.  Butler,  45  N.  H.  236 ;  Donnelly  v. 
Corbett,  7  N.  Y.  500;  Riston  i'.  Content,  4  Wash.  C.  C.  476 ;  Andersons. 
Wheeler,  25  Conn.  603;  Felch  v.  Bugbee,  48  Me.  9;  Chase  v.  Flagg,  48 
Me.  182;  Norton  v.  Cook,  9  Conn.  314:  Kelly  v.  Drury,  91  Mass.  27;  King 
v.  Stevenson,  2  Cliff,  i ;  contra,  Burrall  v.  Rice,  71  Mass.  539;  Capron  v. 
Johnson,  71  Mass.  339,  n.  ;  Scribner  v.  Fisher,  68  Mass.  43;  Whitney?/. 
Whiting,  35  N.  H.  457;  Bank  v.  Squires,  8  La.  Ann.  318;  Soule  v.  Chase, 
39  N.  Y.  342;  s.  C.  i  Robt.  222 ;  Blanchard  v.  Russell,  13  Mass,  i ;  Park- 
inson v.  Scoville,  19  Wend.  150;  Brown  v.  Collins,  41  N.  H.  405;  Smith 
v.  Brown,  47  N.  H.  44;  Brighton  Bank  v.  Merick,  II  Mich.  405. 

State  insolvent  laws  are  void  as  against  a  citizen  of  another  State,  with- 
out reference  to  the  place  where  the  contract  is  made.  Poe  v.  Duck,  5 
Mel.  i  ;  Baldwin  v.  Hale,  I  Wall.  223;  S.  C.  i  Cliff.  511 ;  contra,  Sherrill  v. 
Hopkins,  i  Cow.  103 ;  Raymond  V.  Merchant,  3  Cow.  147. 

A  debt  contracted  in  another  State  with  a  citizen  of  that  State,  without 
any  specific  agreement  as  to  the  place  where  it  shall  be  paid,  will  not  be 
released  by  a  discharge  under  the  laws  of  the  State  where  the  debtor  re- 
sides. Woodbridge  v.  Allen,  53  Mass.  470;  Savoye  v.  Marsh,  51  Mass. 
594- 

A  discharge  under  a  State  insolvent  law  will  not  release  the  debtor  from 
a  promissory  note  made  in  the  State  and  given  to  a  citizen  of  that  State, 
but  indorsed  before  maturity  to  a  citizen  of  another  State,  by  whom  it  was 
held  at  the  time  of  the  application  for  the  benefit  of  the  insolvent  law. 
Braynard  v.  Marshall,  25  Mass.  194;  Towne  v.  Smith,  i  W.  &  M.  115  ; 
Savoye  v.  Marsh,  51  Mass.  594;  Anderson  v.  Wheeler,  25  Conn.  603; 
Smith  v.  Gardiner,  4  Bosw.  54;  Ballard  v.  Webster,  9  Abb.  Pr.  404; 
Houghton  v.  Maynard,  71  Mass.  552;  Bancher  v.  Fisk,  33  Me.  316;  Fes- 
senden  v.  Willey,  84  Mass.  67 ;  Eaton  v.  Sweetser,  84  Mass.  70,  note ; 
Felch  v.  Bugbie,  48  Me.  9;  Chase  v.  Flagg,  48  Me.  182  ;  contra,  Bank  v. 
Squires,  8  La.  Ann.  318. 


l6o  CONSTITUTION    OF    THE    UNITED    STATES. 

If  the  note  was  made  between  citizens  of  the  State,  and  was  held  by  a 
citizen  of  the  State  at  the  time  of  the  application  for  a  discharge,  the  dis- 
charge will  bar  any  -claim  of  a  citizen  of  another  State  who  subsequently 
takes  it  after  it  is  overdue.  Hall  v.  Boardman,  14  N.  H.  38. 

If  a  factor  at  the  time  of  making  the  sale  states  that  he  is  acting  for  a 
principal  who  lives  out  of  the  State,  a  discharge  will  not  bar  the  debt, 
although  the  name  of  the  principal  was  not  disclosed.  Isley  v.  Merriam, 
6 1  Mass.  242. 

If  the  contract  was  not  to  be  performed  in  the  State,  a  discharge  under 
its  laws  will  not  release  the  debtor  from  the  demand  of  a  citizen-  of  another 
State.  McKim  v.  Willis,  83  Mass.  512. 

If  a  promissory  note,  payable  to  the  order  of  a  citizen  of  the  State,  is  in- 
dorsed after  maturity,  but  before  the  filing  of  a  petition  for  a  discharge  to 
a  citizen  of  another  State,  it  will  be  deemed  to  constitute  a  contract  with 
him,  and  will  not  be  released  by  a  discharge.  Fessenden  v.  Willey,  84 
Mass.  67. 

A  subsequent  indorsement  of  a  promissory  note,  if  made  in  pursuance 
of  authority  to  that  effect  given  at  the  time  of  the  sale,  confers  the  same 
rights  upon  the  holder  as  if  it  had  been  previously  made.  Fessenden  v. 
Willey,  84  Mass.  67. 

If  a  foreign  creditor  places  his  claim  in  the  hands  of  an  attorney  re- 
siding in  the  State,  for  collection,  who  takes  a  note  therefor  payable  to  him- 
self as  attorney,  the  discharge  will  not  bar  the  debt,  for  the  courts  will  re- 
gard the  rights  of  the  beneficial  owner.  Crow  v.  Coons,  27  Mo.  5 1 2. 

The  discharge  will  not  avail,  although  it  is  pleaded  in  the  courts  of  the 
State  under  whose  laws  it  was  given.  Frey  v.  Kirk,  4  G.  &  J.  509  ;  Hicks 
v.  Hotchkiss,  7  Johns.  Ch.  297 ;  Savoye  v.  Marsh,  5 1  Mass.  594 ;  Spear  v. 
Peabody,  10  La.  Ann.  146;  contra,  Penniman  v.  Meigs,  9  Johns.  325; 
Bank  v.  Squires,  8  La.  Ann.  318;  Scott  v.  Bogart,  14  La.  Ann.  261. 

The  fact  that  the  original  indebtedness  has  been  converted  into  a  judg- 
ment in  no  way  changes  the  legal  rights  and  liabilities  of  the  parties.  A 
contract  upon  which  a  transitory  action  arises  is  not  rendered  local  by  a 
judgment  rendered  upon  it.  The  character  of  the  debt  as  due  from  citizens 
of  one  State  to  those  of  another,  is  not  affected  by  the  judgment,  but  the 
court  will  look  behind  the  judgment  to  the  original  contract.  Whitney  v. 
Whiting,  35  N.  H.  457. 

The  discharge  will  not  affect  a  citizen  of  another  State,  although  the 
debt,  at  the  time  the  discharge  was  obtained,  was  merged  in  a  judgment 
rendered  in  a  court  of  the  State  under  whose  laws  it  was  so  obtained.  A 
foreign  creditor,  by  suing  for  a  debt  in  a  State  court,  does  not  adopt  its 
insolvent  laws,  or  thereby  waive  his  constitutional  immunity.  Watson  v. 


STATE    INSOLVENT    LAWS.  l6l 

i 

Bourne,  10  Mass.  337  ;  M'Carty  v.  Gibson,  5  Gratt.  307  ;  Owen  v.  Bowie, 
2  Met.  457;  Wyman  v.  Mitchell,  i  Cow.  316;  Donnelly  -v.  Corbett,  7  N. 
Y.  500;  Easterly  v.  Goodwin,  35  Conn.  279;  Poe  v.  Duck,  5  Md.  i; 
Whitney  v.  Whiting,  35  N.  H.  457 ;  Choteau  v.  Richardson,  94  Mass.  368 ; 
Worthington  v.  Jerome,  5  Blatch.  279 ;  Hawley  v.  Hunt,  27  Iowa,  303 ; 
Soule  v.  Chase,  39  N.  Y.  342 ;  S.  C.  i  Robt.  222 ;  contra,  Davidson  V. 
Smith,  i  Biss.  346. 

If  both  parties  were  citizens  of  the  State  when  the  contract  was  made, 
the  discharge  will  release  the  debtor  from  the  contract,  although  the  cred- 
itor had  removed  to  another  State  before  it  was  granted.  Brigham  v.  Hen- 
derson, 55  Mass.  430  ;  Converse  v.  Bradley,  55  Mass.  434;  Stevens  v.  Nor- 
ris,  30  N.  H.  466 ;  Stoddard  v.  Harrington,  100  Mass.  87. 

If  the  plaintiff  was  a  resident  of  the  State  at  the  time  when  the  judg- 
ment was  entered,  a  discharge  will  release  the  debt,  although  he  removed 
from  the  State  before  the  commencement  of  the  proceedings  in  insolvency. 
Brown  v.  Bridge,  106  Mass.  563. 

The  provisions  of  a  State  law  in  regard  to  conveyances  by  a  debtor  in 
contemplation  of  insolvency  do  not  apply  to  transfers  made  to  citizens  of 
another  State.  Larrabee  v.  Talbott,  5  Gill,  426 ;  Potter  v.  Kerr,  i  Md. 
Ch.  275  ;  Mead  v.  Dayton,  28  Conn.  33. 

The  pendency  of  proceedings  in  insolvency  will  not  prevent  a  foreign 
creditor  from  attaching  any  property  of  the  debtor  that  may  be  found  in 
any  other  State.  Beer  v.  Hooper,  32  Miss.  246  ;  Dunlap  v.  Rogers,  47  N. 
H.  281 ;  Crapo  v.  Kelly,  45  N.  Y.  86  ;  S.  C.  16  Wall.  610.. 

If  the  property  is  within  the  State  at  the  time  of  the  execution  of  the 
assignment,  the  title  of  the  assignee  will  prevail  over  that  of  any  subse- 
quent attachment  by  a  non-resident  creditor.  Crapo  z/.  Kelly,  16  Wall. 
6 10  ;  S.  C.  45  N.  Y.  86  ;  Perry  Manuf.  Co.  v.  Brown,  2  W.  &  M.  449; 
contra,  Owen  v.  Bowie,  2  Md.  457 ;  White  v.  Winn,  8  Gill,  499  ;  Poe  v. 
Duck,  5  Md.  i  ;  Glenn  v.  Glass  Co.  7  Md.  287. 

If  a  vessel  which  is  upon  the  high  seas  at  the  time  when  the  assign- 
ment is  made,  enters  the  port  of  another  State,  she  can  not  be  there  at- 
tached by  a  citizen  of  that  State,  for  at  the  time  of  the  assignment  she 
was  legally  and  constructively  within  the  territory  of  the  State  where  the 
debtor  resided,  and  subject  to  its  laws.  Crapo  v.  Kelly,  16  Wall.  610;  S.  C. 
45  N.  Y.  86. 

A  State  insolvent  law  is  valid  against  a  foreign  creditor,  so  far  as  it  re- 
leases the  person  of  the  debtor  from  imprisonment.  Choteau  v.  Richard- 
son, 94  Mass.  368;  Donnelly  v.  Corbett,  7  N.  Y.  500;  Carey  v.  Conrad,  2 
Miles,  92. 

11 


1 62  CONSTITUTION    OF    THE    UNITED    STATES. 

A  citizen  of  another  State  who  voluntarily  makes  himself  a  party  to  the 
proceedings,  and  receives  a  dividend,  abandons  his  extra-territorial  im- 
munity, and  his  claim  is  barred  by  the  discharge.  Clay  v.  Smith,  3  Pet. 
411  ;  Gardner  v.  Lee's  Bank,  11  Barb.  558;  Journeay  v.  Gardner,  65  Mass. 
355;  contra,  Woodbridge  z/.  Wright,  3  Conn.  523;  Agnew  v.  Platt,  32 
Mass.  417. 

By  proof  of  the  debt  in  the  proceedings  a  creditor  makes  himself  a 
party  thereto,  and  a  discharge  will  be  a  bar  to  the  demand,  although  no 
dividends  have  been  received  thereon.  Blackman  v.  Green,  24  Vt.  17. 

If  an  agent,  without  any  authority  from  his  principal,  proves  the  debt  in 
the  proceedings,  this  will,  not  render  the  discharge  valid  as  against  the 
principal.  Blackman  rv.  Green,  24  Vt.  17. 

If  a  foreign  creditor  unites  in  recommending  a  trustee  in  insolvency, 
he  thereby  becomes  a  party  to  the  proceedings.  Jones  v.  Horsey,  4  Md. 
306. 

An  attorney  who  holds  a  claim  for  collection  has  the  power  to  unite  in 
the  recommendation  of  a  trustee,  and  thereby  make  his  client  a  party  to 
the  proceedings.  Jones  v.  Horsey,  4  Md.  306. 

A  mere  appearance  in  the  proceedings  to  oppose  the  granting  of  a  dis- 
charge will  not  render  the  discharge  a  bar  to  the  debt  of  a  citizen  of 
another  State.  Norton  V.  Cook,  9  Conn.  314 ;  M'Carty  v.  Gibson,  5 
Gratt.  307 ;  Collins  v.  Rodolph,  3  Greene  (Iowa),  299. 

Knowledge  is  one  thing,  and  assent  is  another,  and  it  by  no  means  fol- 
lows that  because  a  party  acts  with  reference  to  a  knowledge  of  a  partic- 
ular act,  that  he  thereby  assents  or  acquiesces  in  that  act.  The  mere 
knowledge  of  the  legal  effect  of  the  insolvent  laws,  will  not  afford  grounds 
for  an  inference  of  an  assent  to  be  bound  by  those  laws.  Glenn  v.  Glass 
Co.  7  Md.  287. 

The  act  of  waiving  a  constitutional  privilege  must  be  unequivocal. 
Donnelly  v.  Corbett,  7  N.  Y.  500. 

That  part  of  a  State  insolvent  law  which  discharges  a  person  from  im- 
prisonment, may  be  valid,  although  the  part  which  attempts  to  discharge 
the  debt  is  void.  Glenn  v.  Humphreys,  4  Wash.  424. 

If  the  State  court  had  no  jurisdiction  of  the  case,  a  participation  in  the 
proceedings  will  not  make  the  discharge  valid.  Agnew  v.  Platt,  32  Mass. 
417- 

Corporations. 

f       The  charter  of  a  private  corporation  is  a  contract,  the  obligation  oi 
A  which  can  not  be  impaired  without  violating  the  Constitution.     Dartmouth 


CORPORATIONS.  163 

College  v.  Woodward,  4  Wheat.  518  ;  Norris  v.  Abingdon  Academy,  7  G. 
&  J.  7 ;  Canal  Co.  v.  Railroad  Co.  4  G.  &  J.  I  ;  Regents  v.  Williams,  9  G. 
&  J-  365;  Enfield  Bridge  Co.  v.  Railroad  Co.  17  Conn.  40;  Michigan 
Bank  -z/.  Hastings,  i  Doug.  225;  Young  v..  Harrison,  6  Geo.  130;  Bank  v. 
Bank  of  Cape  Fear,  13  Ired.  75  ;  Montpelier  Academy  v.  George,  14  La. 
395  ;  Binghamton  Bridge  v.  Chenango  Bridge,  3  Wall.  51  ;  s.  C.  27  N.  Y. 
$7 ;  Phila.  W.  &  B.  R.  R.  Co.  v.  Bowers,  4  Houst.  506  ;  Union  Bank  v. 
State,  9  Yerg.  490;  Allen  v.  Buchanan,  9  Phila.  283  ;  S.  C.  20  Pitts.  L.  J. 
128. 

A  general  law  for  the  organization  of  corporations  is  as  special  to  each 
corporation  as  if  no  other  institution  were  incorporated  by  it.  State  Bank 
v.  Knoop,  1 6  How.  369. 

A  charter  is  a  contract,  both  executed  and  executory.     Phila.  W.  &  B.^- 
R.  R.  Co.  v.  Bowers,  4  Houst.  506. 

The  objects  for  which  a  corporation  is  created  are  universally  such  as 
the  government  wishes  to  promote.  They  are  deemed  beneficial  to  the 
country,  and  this  benefit  constitutes  the  consideration,  and  in  most  cases 
the  sole  consideration,  of  the  grant.  Dartmouth  College  v.  Woodward,  4 
Wheat.  518. 

The  benefit  which  the  community  may  derive  from  the  objects  for 
which  the  corporation  was  created  constitutes  the  consideration  for  the 
charter,  and  no  other  is  required  to  support  it.  Home  of  the  Friendless  v. 
Rouse,  8  Wall.  430  ;  Regents  v.  Williams,  9  G.  &  J.  365. 

A  grant  of  franchises  is  not  in  point  of  principle  distinguishable  from  a/ 
grant  of  any  other  property.  Dartmouth  College  v.  Woodward,  4  Wheat. 
518  ;  Derby  Turnpike  Co.  v.  Parks,  10  Conn.  522;  Canal  Co.  v.  Railroad 
Co.  4  G.  &  J.  i  ;  Enfield  Bridge  Co.  •v.  Connecticut  River  Co.  7  Conn.  28; 
Washington  Bridge  Co.  v.  State,  18  Conn.  53;  Benson  v.  New  York,  10 
Barb.  223. 

Whether  the  consideration  is  large  or  small  is  immaterial,  as  the  mo- 
tives or  considerations  which  induced  a  sovereign  State  to  make  a  contract 
can  not  be  inquired  into  as  affecting  the  validity  of  the  act.  Of  the  suffi- 
ciency of  the  consideration,  the  legislature  is  the  exclusive  judge.  State 
Bank  v.  Knoop,  16  How.  369. 

A  charter  is  a  stipulation  on  the  part  of  the  State,  that  the  corporation 
shall  be  and  continue  a  corporation  for  an  indefinite  time,  or  for  the  term 
limited  in  the  charter,  unless  sooner  forfeited  for  some  cause  recognized  by 
existing  laws  as  a  cause  of  forfeiture ;  that  its  constitution,  organization 
and  mode  of  action,  as  prescribed  by  its  charter,  shall  not  be  annulled  or 
changed  by  the  legislature ;  that  members  shall  not  be  added  or  removed  ; 
that  modes  of  election,  expulsion  or  suspension  of  members  shall  not  be 
altered,  and  that  whatever  belongs  to  its  organic  constitution  and  action  as 


164  CONSTITUTION    OF    THE    UNITED    STATES. 

a  body  corporate,  shall  continue  and  be  determined  by  the  terms  of 
the  charter.  In  addition  to  which,  the  powers  specially  granted  to  it 
are  not  to  be  withdrawn  or  diminished.  Comm.  v.  Farmers'  Bank,  38 
Mass.  542;  Thorpe  z/.  B.  &  R.  R.  R.  Co.  27  Vt.  140. 

The  implied  powers  conferred  by  a  charter,  are  held  by  a  tenure  as 
sacred  as  those  which  are  expressly  given.  People  v.  Manhattan  Co.  9 
Wend.  351 ;  Commercial  Bank  v.  State,  12  Miss.  439. 

The  incidental  or  implied  powers  are,  at  most,  only  such  powers  as  are 
essentially  necessary  to  enable  the  corporation  to  fulfill  its  destiny— to  do 
those  things  which  it  may  do  by  express  permission.  It  may  be  presumed 
that  such  powers  were  intended  to  be  conferred ;  they  are  implied  from 
those  which  are  granted.  Paynes.  Baldwin,  11  Miss.  661  ;  Commercial 
Bank  v.  State,  12  Miss.  439. 

Every  valuable  privilege  given  by  the  charter,  and  which  conduced  to 
an  acceptance  of  it  and  an  organization  under  it,  is  a  contract  which  can 
not  be  changed  by  the  legislature,  where  the  power  to  do  so  is  not  reserved 
in  the  charter.  State  Bank  v.  Knoop,  16  How.  369. 

A  statute  conferring  upon  a  corporation  the  right  to  collect  additional 
tolls  is  a  grant,  and  not  a  license.  Derby  Turnpike  Co.  v.  Parks,  10  Conn. 

522. 

In  examining  a  question  of  corporate  rights  and  immunities,  and  the 
extent  of  the  legislative  power,  the  question  is,  whether  the  legislature  can 
exercise  the  power  consistently  with  the  provisions  of  the  charter  and  the 
rights  of  the  corporation  in  any  form.  If  the  power  exists,  the  mode  of 
exercising  it  may  be  such  as  the  legislature  may  direct.  Comm.  v.  Farm- 
ers' Bank,  38  Mass.  542. 

It  is  not  a  principle  that  a  grant  may  be  infringed  upon  if  the  variation 
be  not  great.  As  every  variation  violates,  small  injuries  are  as  much  pro- 
hibited as  larger  ones,  and  the  least  right  is  as  anxiously  protected  as  the 
greatest.  Enfield  Bridge  Co.  v.  Connecticut  River  Co.  7  Conn.  28. 

If  the  State  is  the  sole  stockholder  in  a  corporation,  the  charter  can  not 
/   be  deemed  to  be  such  a  contract  between  the  State  and  the  corporation  as 
I    is  protected  by  the  Constitution.     Curran  v.  State,  1 5  How.  304 ;    S.  C.  1 2 
Ark.  321. 

Corporations  are  either  public  or  private.    Public  corporations  are  gen- 
ff  erally  esteemed  such  as  exist  for  public  political  purposes  only,  such  as 
«~towns,  cities,  parishes  and  counties,  and  in  many  respects  they  are  so,  al- 
though they  involve  some  private  interests  ;  but  strictly  speaking,  public 
corporations  are  such  only  as  are  founded  by  the  government  for  public  pur- 
poses, where  the  whole  interests  belong  also  to  the  government.     The 


CORPORATIONS.  165 

•whole  interests  and  franchises  must  be  the  exclusive  property  and  domain 
of  the  government  itself.  Dartmouth  College  z/.  Woodward,  4  Wheat. 
518;  Allen  it.  McKeen,  i  Sumn.  276;  Regents  v.  Williams,  9  G.  &  J. 
365  ;  University  z/.  Maultsby,  8  Ired.  Eq.  257. 

If  the  foundation  of  a  corporation  is  private,  though  under  the  charter 
of  the  government,  the  corporation  is  private,  however  extensive  the  uses 
may  be  to  which  it  is  devoted,  either  by  the  bounty  of  the  founder  or  the 
nature  and  objects  of  the  institution.  Dartmouth  College  v.  Woodward,  4 
Wheat.  518;  Trustees  v  Bradbury,  n  Me.  118;  Aliens.  McKeen,  I  Sum. 
276  ;  Regents  v.  Williams,  9  G.  &  J.  365 ;  State  v.  Heyward,  3  Rich.  389 ; 
Brown  v.  Hummel,  6  Penn.  86 ;  Plymouth  v.  Jackson,  1 5  Penn.  44 ;  Yar- 
mouth v.  Yarmouth,  34  Me.  411  ;  Trustees  v.  State,  14  How.  268;  S.  C.  2 
Ind.  293;  Louisville  v.  University,  156.  Mon.  642. 

It  by  no  means  follows  that,  because  the  action  of  a  corporation  may 
be  beneficial  to  the  public,  it  is  a  public  corporation.     This  may  be  said  of 
all  corporations  whose  objects  are  the  administration  of  charities.     But 
these  are  not  public,  though  incorporated  by  the  legislature,  unless  their   ' 
funds  belong  to  the  government.     Where  the  property  of  a  corporation  is  i 
private,  it  gives  the  same  character  to  the  institution,  and  to  this  there  is  () 
no  exception.     State  Bank  v.  Knoop,  16  How.  369. 

A  corporation  may  be  private,  and  yet  the  charter  may  contain  pro- 
visions of  a  purely  public  character,  introduced  solely  for  the  public  good, 
and  as  a  general  police  regulation  of  the  State.  Regents  v.  Williams,  9 
G.  &  J.  365. 

The  mere  fact  that  the  funds  have  been  generally  derived  from  the 
bounty  of  the  government  will  not  make  the  corporation  public,  for  the 
government  may  as  well  bestow  its  bounty  upon  a  private  corporation  as 
upon  a  public  corporation.  Louisville  z/.  University,  15  B.  Mon.  642; 
Allen  v.  McKeen,  i  Sum.  276 ;  Regents  z/.  Williams,  9  G.  &  J.  365  ; 
Sheriff  v.  Lowndes,  16  Md.  357  ;  State  z/.  Heyward,  3  Rich.  389 ;  Yar- 
mouth z/.  Yarmouth,  34  Me.  41 1 ;  Richardson  v.  Brown,  6  Me.  355  ;  Mont- 
pelier  Academy  z/.  George,  14  La.  395. 

A  corporation  created  for  the  purpose  of  investing  school  funds  for  a 
town  and  applying  the  income  for  the  benefit  of  the  schools  in  the  town,  is 
a  private  corporation.  Trustees  v.  Bradbury,  n  Me.  118. 

A  banking  corporation,  the  stock  of  which  is  owned  by  private  individ- 
uals, is  a  private  corporation.     State  Bank  z/.  Knoop,  16  How.  369;  Miner's   » 
Bank  z/.  U.  S.  i  Iowa,  553;  Hazen  z/.  Union  Bank,  i  Sneed,  115. 


l66  CONSTITUTION    OF    THE    UNITED    STATES. 


Construction* 

The  object  and  end  of  all  government  is  to  promote  the  happiness  and' 
prosperity  of  the  community  by  which  it  is  established,  and  it  can  never  be 
assumed  that  the  government  intended  to  diminish  its  power  of  accom- 
plishing the  end  for  which  it  was  created.  Whenever  any  power  of  the 
State  is  said  to  be  surrendered  or  diminished,  whether  it  be  the  taxing 
power  or  any  other  power  affecting  the  public  interest,  this  principle  applies. 

I  Hence  the  rule  for  construing  charters  is,  that  any  ambiguity  in  their  terms 
must  operate  against  the  corporation  and  in  favor  of  the  public,  and  the 

I  corporation  can  claim  nothing  that  is  not  clearly  given  to  it  by  the  act. 
The  exercise  of  a  corporate  franchise,  being  restrictive  of  individual  rights, 
can  not  be  extended  beyond  the  letter  and  spirit  of  the  act  of  incorporation. 
No  rights  are  taken  from  the  public  or  given  to  the  corporation  beyond 
those  which  the  words  of  the  charter,  by  their  natural  and  proper  construc- 
tion, purport  to  convey.  Charles  River  Bridge  v.  Warren  Bridge,  1 1  Pet. 
420;  S.  C.  24  Mass.  344;  23  Mass.  376;  Providence  Bank  v.  Billings,  4 
Pet.  514;  Enfield  Bridge  Co.  v.  Connecticut  River  Co.  7  Conn.  28;  Hart- 
ford Bridge  Co.  v.  East  Hartford,  16  Conn.  149;  Turnpike  Co.  v.  Railroad 
Co.  10  G.  &  J.  392 ;  Tuckahoe  Canal  Co.  v.  Railroad,  n  Leigh,  42  ;  Hart- 
ford Bridge  Co.  -z/.  Union  Ferry  Co.  29  Conn.  210  ;  Mills  v.  St.  Clair,  6 
How.  569;  S.  C.  2  Oilman,  197;  Planters'  Bank  v.  Sharp,  6  How.  301; 
S.  C.  12  Miss.  28 ;  6hio  Trust  Co.  v.  Debolt,  18  How.  416  ;  S.  C.  i  Ohio- 
St.  563;  Collins  v.  Sherman,  31  Miss.  679;  McLeod  v.  Burroughs,  9  Geo. 
213;  Richmond  R.  R.  Co.  v.  Louisa  R.  R.  Co.  13  How.  71. 

A  corporation  is  an  artificial  being,  invisible,  intangible,  and  existing 
only  in  contemplation  of  law.  Being  the  mere  creature  of  law,  it  possesses 
only  those  properties  which  the  charter  of  its  creation  confers  upon  it, 
either  expressly  or  as  incidental  to  its  veiy  existence.  This  being  does  not 
share  in  the  civil  government  of  the  country  unless  that  be  the  purpose  for 
which  it  was  created.  Dartmouth  College  v.  Woodward,  4  Wheat.  518; 
Regents  v.  Williams,  9  G.  &  J.  365. 

All  contracts  are  to  be  construed  to  accomplish  the  intention  of  the 
''parties,  and  in  determining  their  different  provisions,  a  liberal  and  fair  con- 
struction will  be  given  to  the  words  either  singly  or  in  connection  with  the 
subject-matter.  It  is  not  the  duty  of  a  court,  by  legal  subtlety,  to  over- 
throw a  contract,  but  rather  to  uphold  it  and  give  it  effect,  and  no  strained 
or  artificial  rule  of  construction  is  to  be  applied  to  any  part  of  it.  If  there 
is  no  ambiguity,  and  the  meaning  of  the  parties  can  be  clearly  ascertained, 
effect  is  to  be  given  to  the  instrument  used,  whether  it  is  a  legislative  grant 
or  not.  Binghamton  Bridge  v.  Chenango  Bridge,  3  Wall.  51;  S.  C.  27 
N.  Y.  87. 

All  rights  which  are  asserted  against  the  State  must  be  clearly  defined, 
and  not  raised  by  inference  or  presumption,  and  if  the  charter  is  silent 


INSTANCES.  167 

about  a  power  it  does  not  exist.     Binghamton  Bridge  v.  Chenango  Bridge, 
3  Wall.  51;  S.  C.  27  N.  Y.  87. 

Where  the  instrument  is  susceptible  of  two  meanings,  the  one  restrict-s^, 
ing  and  the  other  extending  the  powers  of  the  corporation,  that  construe^ 
tion  is  to  be  adopted  which  works  the  least  harm  to  the  State.     Bingham- 
ton Bridge  v.  Chenango  Bridge,  3  Wall.  51 ;  S.  C.  27  N.  Y.  87. 

If  there  is  no  ambiguity  in  the  charter,  and  the  powers  conferred  are 
plainly  marked  and  their  limits  can  be  readily  ascertained,  then  it  is  the 
duty  of  the  court  to  sustain  and  uphold  it,  and  to  carry  out  the  true  mean- 
ing and  intention  of  the  parties  to  it.  Binghamton  Bridge  v.  Chenango 
Bridge,  3  Wall.  51 ;  s.  C.  27  N.  Y.  87. 

If  on  a  fair  reading  of  the  instrument,  reasonable  doubts  arise  as  to  the 
proper  interpretation  to  be  given  to  it,  those  doubts  are   to  be  solved  in  w 
favor  of  the  State.      Binghamton  Bridge  v.  Chenango  Bridge,   3  Wall.  5 1 ; 
S.  C.  27  N.  Y.  87. 

When  a  right  under  a  charter  is  claimed  by  construction  merely,  and 
the  legislature  has  passed  an  act  inconsistent  with  the  right  so  claimed,  a 
construction  should  not  be  given  which  will  produce  a  conflict  between  the 
two  acts,  unless  it  is  imperiously  demanded  by  the  general  scope  and  evi- 
dent design  of  all  the  provisions  in  the  charter  which  bear  upon  the  subject. 
Maysville  Turnpike  Co.  v.  How,  14  B.  Mon.  426. 

To  establish  a  contract  on  the  part  of  the  legislature  to  relinquish  any 
of  its  sovereign  powers,  plain  and  unequivocal  words  must  be  used.  State 
v.  Matthews,  3  Jones  (N.  C.)  451. 

In§tance§. 

If  the  charter  allows  the  corporation  a  reasonable  time  to  comply  with 
the  conditions  whereby  it  may  obtain  an  interest  in  land,  the  legislature 
can  not  shorten  that  time  or  impose  any  liability  upon  it,  if  it  chooses  to 
avail  itself  of  all  the  time  allowed  by  the  charter.  Nichols  v.  Som.  &  Ken. 
R.  R.  Co.  43  Me.  356. 

The  grant  of  an  annual  appropriation  in  a  charter,  in  consideration  of 
subscriptions  by  private  individuals,  is  a  contract  and  can  not  be  repealed. 
Visitors  v.  State,  1 5  Md.  330. 

The  charter  of  an  eleemosynary  corporation  can  not  be  amended  with 
the  consent  of  the  curators  or  directors.  State  v.  Adams,  44  Mo.  570. 

A  statute  giving  a  right  of  action  to  those  who  have  been  injured  by 
the  erection  of  a  close  bridge  over  a  navigable  creek,  when  such  bridge 
was  authorized  by  the  charter,  is  void.  Bailey  v.  Railroad  Co.  4  Harring. 
389- 


l68  CONSTITUTION    OF    THE    UNITED    STATES. 

Any  act  which  impairs  the  charter  by  enlarging  the  power  of  the  State 
over  the  body  corporate,  or  by  abridging  the  franchises,  or  by  altering  the 
charter  in  any  material  point,  is  void.  Commercial  Bank  v.  State,  14 
Miss.  599. 

A  statute  passed  after  the  granting  of  a  charter,  and  annexing  a  cause 
x>f  forfeiture  unknown  to  the  charter,  is  unconstitutional.  People  v.  Plank- 
road  Co.  9  Mich.  285  ;  State  v.  Tombecbee  Bank,  2  Stew.  30  ;  Washington 
Bridge  Co.  v.  State,  18  Conn.  53;  Aurora  Turnpike  Co.  v.  Holthouse,  7 
Ind.  59. 

A  statute  having  the  effect  to  abridge  or  restrict  any  power  or  privilege 
vested  by  the  charter,  which  is  material  to  the  beneficial  exercise  of  the 
franchise  granted,  and  which  must  be  supposed  to  have  entered  into  the 
consideration  which  induced  the  corporators  to  accept  the  charter  and  to 
assume  the  duties  imposed  by  it,  is  void.  Phil.  W.  &  B.  R.  R.  Co.  v. 
Bowers,  4  Houst.  506. 

An  officer  of  a  corporation  who,  by  the  terms  of  the  charter,  holds  his 
office  during  good  behavior,  with  a  fixed  salary  and  certain  fees  annexed 
thereto,  can  not  be  deprived  of  that  office  by  a  statute  purporting  to  amend 
the  charter,  although  it  is  accepted  by  the  corporation.  Allen  v.  McKeen, 
i  Sum.  276. 

The  legislature  may,  in  a  charter,  impose  duties  and  obligations  upon  a 
corporation,  and  inflict  penalties  and  forfeitures  as  a  punishment  for  its  dis- 
obedience, which  may  be  enforced  against  it  in  the  form  of  criminal  pro- 
ceedings, and^as  the  punishment  of  an  offense  against  the  law.  Such  penal 
provisions  are  not  mere  matters  of  contract.  In  legislative  proceedings  a 
forfeiture  is  always  to  be  regarded  as  a  punishment  inflicted  for  the  viola- 
tion of  some  duty  enjoined  upon  the  party  by  law,  and  may  be  remitted 
after  it  has  been  incurred,  although  it  was  to  be  for  the  benefit  of  a  munic- 
ipal corporation.  State  v.  Railroad  Co.  3  How.  534;  s.  C.  12  G.  &  J.  399. 

If  the  charter  of  a  medical  college  confers  upon  the  corporation  the 
power  to  appoint  a  board  of  examiners  to  examine  applicants  and  grant 
licenses  upon  the  payment  of  ten  dollars,  and  prohibits  the  practice  of  med- 
icine without  such  license,  this  is  merely  a  police  regulation,  and  may  be 
repealed.  Regents  v.  Williams,  9  G.  &  J.  365 ;  vide  State  v.  Heyward,  3 
Rich.  389. 

A  statute  setting  aside  an  inquisition  of  damages  for  land  to  be  taken 
under  a  charter,  and  granting  an  inquisition  de  novo  before  a  tender  of  the 
value  assessed  by  the  inquisition,  does  not  impair  the  obligation  of  the 
charter  when  such  tender  is  necessary  to  entitle  the  corporation  to  the  land. 
Bait.  &  S.  R.  R.  Co.  v.  Nesbit,  10  How.  395. 

If  the  remedy  provided  in  the  charter  for  assessing  damages  for  taking 


BANKS.  169 

land,  is  unsuitable  or  insufficient,  the  legislature  has  the  power  to  change 
it,  both  as  to  time  and  mode.  Gowan  v.  Penobscot  R.  R.  Co.  44  Me. 
140. 

A  statute  transferring  the  property  of  an  insolvent  corporation  to  a  new 
corporation,  in  consideration  of  shares  of  the  latter's  stock,  which  are  au- 
thorized to  be  sold  for  debts  due  by  the  insolvent  corporation,  is  valid. 
Mudge  z/.  Commissioners,  10  Rob.  (La.)  460. 

A  State  can  not  require  a  canal  corporation  to  keep  in  repair  the  public 
bridges  connecting  the  highways  intersected  by  the  canal.  City  «/.  Erie 
Canal  Co.  59  Penn.  174. ' 

A  breach  of  the  contract  on  the  part  of  the  State,  furnishes  no  excuse  I 
to  a  corporation  for  disregarding  the  part  which  is  a  burden,  while  at  the 
same  time  insisting  upon  the  observance  of  the  part  which  is  beneficial. 
Turnpike  Co.  v.  State,  3  Wall.  210. 

A  statute  making  the  stockholders  personally  liable  for  the  debts  of  the 
corporation,  has  no  tendency  to  impair  or  in  any  way  affect  or  modify  any 
power,  privilege  or  immunity  pertaining  to  the  franchise  of  the  corporation, 
and  is  therefore  within  the  just  limits  of  legislative  power.  Gray  v.  Coffin, 
63  Mass.  192;  Coffin  v.  Rich,  45  Me.  507;  Stanleys/.  Stanley,  26  Me.  191. 

Banks. 

A  general  statute  making  the  suspension  of  specie  payment  by  a  bank 
a  cause  of  forfeiture,  when  such  cause  is  not  stated  in  the  charter,  is  void. 
State  v.  Tombecbee  Bank,  2  Stew.  30. 

A  statute  prohibiting  a  bank  from  transferring  notes  by  indorsement,  is 
valid,  unless  the  power  to  do  so  is  expressly  granted  in  the  charter,  for  the 
indorsement  of  a  note  is  a  new  contract,  the  power  to  make  which  is  de- 
rived from  the  law,  and  the  statute  simply  takes  this  from  the  bank.  Payne 
v.  Baldwin,  n  Miss.  66 1 ;  Mclntyre  v.  Ingraham,  35  Miss.  25. 

A  statute  authorizing  the  debtors  of  a  bank  to  pay  their  debts  in  the 
notes  and  certificates  of  the  bank  is  constitutional.  Bank  of  Md.  v.  Ruff, 
7  G.  &  J.  448. 

If  a  State  creates  a  bank  of  which  it  is  the  sole  stockholder,  and  pro- 
vides the  capital  therefor,  whenever  a  credit  is  given  to  the  bank  on  the 
faith  of  this  assurance,  a  contract  at  once  arises  between  the  State  and  the 
creditor  not  to  withdraw  the  capital  to  his  injury,  and  the  State  can  not 
withdraw  the  fund  or  any  part  of  it  without  impairing  its  obligation.  Cur- 
ran  v.  State,  15  How.  304;  s.  C.  12  Ark.  321. 

The  general  power  to  issue  notes  and  bills,  without  any  express  grant 
as  to  small  notes,  is  not  a  surrender  of  the  right  of  the  State  to  prescribe 


I  7O  CONSTITUTION    OF    THE    UNITED    STATES. 

by  law  the  lowest  denomination  for  which  notes  or  bills  shall  be  allowed  to 
circulate,  but  is  subordinate  to  that  right.  No  such  surrender  can  be  im- 
plied or  presumed,  for  it  is  not  only  the  right  but  the  duty  of  the  State  to 
secure  to  its  citizens,  as  far  as  it  is  able,  a  safe  and  sound  currency,  and  to 
prevent  the  circulation  of  small  notes  when  they  become  depreciated  and 
are  a  public  evil.  The  community  havesas  deep  an  interest  in  preserving 
this  right  undiminished  as  they  have  the  taxing  power,  and  like  the  taxing 
power,  it  will  not  be  construed  to  be  relinquished  unless  the  intention  to  do 
so  is  clearly  expressed.  Ohio  Trust  Co.  v.  Debolt,  16  How.  416;  s.  C.  i 
Ohio  St.  563;  State  v.  Matthews,  3  Jones  (N.  C.)  451. 

Bridges. 

An  undertaking  to  transport  certain  persons  free  of  toll,  in  considera- 
tion of  the  removal  of  the  county  seat,  will  not  prevent  the  State  from  au- 
thorizing the  construction  of  a  bridge  which  will  divert  the  travel,  for  it 
thereby  relieves  the  party  from  the  burden  of  his  contract.  Shorter  v. 
Smith,  9  Geo.  517. 

A  charter  includes  the  laws  defining  its  stipulations  at  the  time  of  the 
grant.  If  the  general  laws  at  the  time  of  the  granting  of  a  charter  for  a 
bridge,  prohibit  the  erection  of  another  bridge  within  a  certain  distance  of 
one  already  existing,  a  subsequent  statute  allowing  the  erection  of  a  bridge 
within  that  distance  is  void.  Micou  v.  Tallassee  Bridge  Co.  47  Ala. 
652. 

The  construction  of  a  railroad  bridge  is  not  a  violation  of  the  exclusive 
right  to  construct  a  bridge  for  carriages  in  common  use.  McLeod  v.  Sav. 
A.  &  G.  R.  R.  Co.  25  Geo.  445;  Mohawk  Bridge  Co.  v.  Railroad  Co.  6 
Paige,  554;  Bridge  Co.  v.  Hoboken  Land  Co.  2  Beasely,  81 ;  S.  c.  i  Wall. 
116;  McRee?/.  Railroad  Co.  2  Jones  (N.  C.)  186  ;  Thompson  v.  Railroad 
Co.  3  Sandf.  625;  contra,  Enfield  Bridge  Co.  v.  Railroad  Co.  17  Conn.  40. 

A  new  road,  canal  or  bridge  materially  diverting  travel  or  business  from 
an  old  one,  established  under  a  prior  charter,  is  not  unconstitutional  unless 
the  franchise  is  defined  or  made  exclusive.  Charles  River  Bridge  v.  War- 
ren Bridge,  1 1  Pet.  420  ;  S.  C.  24  Mass.  344 ;  23  Mass.  376 ;  Fort  Plain 
Bridge  Co.  v.  Smith,  30  N.  Y.  44;  Turnpike  Co.  v.  State,  3  Wall.  260;  Fall 
v.  Suter,  21  Cal.  237;  Indian  Canon  Road  v.  Robinson,  13  Cal.  519  ;  Bush 
v.  Peru  Bridge  Co.  3  Ind.  21  ;  In  re  Hamilton  Avenue,  i4'Barb.  405;  111. 
&  Mich.  Canal  Co.  v.  Railroad  Co.  14  111.  314;  Salem  Turnpike  Co.  v. 
Lyme,  18  Conn.  451;  Oswego  Bridge  Co.  v.  Fish,  i  Barb.  Ch.  547  ^ 
Thompson  v.  Railroad  Co.  3  Sandf.  Ch.  625;  Harrison  v.  Young,  9  Geo. 
359;  Shorter  v.  Smith,  9  Geo.  517  ;  Fitch  v.  Railroad  Co.  30  Conn.  38; 
Mohawk  Bridge  Co.  v.  Railroad  Co.  6  Paige,  554 ;  Collins  v.  Sherman,  31 
Miss.  679  ;  Curtis  v.  Morehouse,  12  La.  Ann.  649;  West  End  Co.  v.  At- 
lanta Co.  4  Geo.  151. 


RAILROADS. 


Turnpikes. 

A  statute  authorizing  commissioners  to  examine  the  condition  of  turn- 
pike roads,  and  throw  open  the  gates  if  they  are  out  of  repair,  is  void,  for 
it  impairs  the  right  of  the  corporation  to  collect  toll  at  its  gates.  Powell 
v.  Sammons,  31  Ala.  552. 

A  charter  authorizing  the  construction  of  a  railroad  does  not  impair  the 
obligation  imposed  by  a  prior  charter  to  a  turnpike  company,  authorizing 
the  construction  of  a  turnpike  between  the  same  termini.  Turnpike  Co.  v.. 
Railroad  Co.  10  G.  &  J.  392. 

A  statute  appointing  inspectors  of  turnpikes  with  power  to  direct  prop- 
er repairs  to  be  made,  and  to  take  down  the  toll  gates  for  a  refusal  to 
make  such  repairs,  does  not  impair  the  obligation  imposed  by  the  charters. 
State  v.  Bosworth,  13  Vt.  402. 

If  the  charter  of  a  turnpike  company  prescribes  the  form  of  the  sign  or 
board  with  the  rates  of  tolls,  it  will  prevail  over  a  general  statute  subse- 
quently passed.  Nichols  v.  Bertram,  20  Mass.  342. 

Railroads. 

Where  the  charter  provides  that  the  directors  may  regulate  the  busi- 
ness of  a  railroad  corporation,  a  statute  requiring  that  the  first  train  arriv- 
ing at  a  crossing  shall  wait  until  the  train  upon  the  other  road  shall  ar- 
rive, is  void.  State  v.  Noyes,  47  Me.  189. 

If  the  State,  in  conferring  a  right  or  franchise  lying  solely  in  grantr, 
stipulates,  for  a  valuable  consideration,  that  the  grantee  shall  have  and  en- 
joy it  undisturbed  and  unmolested  by  any  act  or  permission  on  the  part  of 
the  State,  the  grant  has  the  same  effect  as  if  it  were  the  grant  of  an  exclu- 
sive right  in  terms.  It  is  equivalent  to  a  covenant  for  quiet  enjoyment 
against  the  acts  of  the  State  and  those  claiming  under  it.  If  the  charter  of 
a  railroad  corporation  contains  a  provision  that  no  other  road  shall  be  built 
within  a  certain  distance,  the  corporation  can  not  be  disturbed  in  the  en- 
joyment of  the  franchise  by  any  subsequent  charter.  The  stipulations  may 
be  both  an  executory  covenant  and  an  executed  contract.  So  far  as  it  confers 
a  present  right  it  is  executed ;  so  far  as  it  amounts  to  a  stipulation  that  the 
covenantor  will  not  disturb  the  enjoyment  of  the  right  granted,  it  may  be 
deemed  executory.  Boston  &  L.  R.  R.  Co.  v.  Salem  &  L.  R.  R.  Co.  68 
Mass.  i. 

A  law  changing  the  tariff  of  freights  which  a  railroad  corporation  is  al- 
lowed by  its  charter  to  charge,  is  void.  Hamilton  v.  Keith,  5  Bush,  458. 

A  State  can  not  regulate  the  tolls  of  a  corporation  whose  charter  au- 
thorizes it  to  take  such  tolls  as  it  may  deem  reasonable.  Att.  Gen.  2/. 
Railroad  Companies,  35\Vis.  425. 

Where  the  charter  confers  upon  a  railroad  corporation  the  power  to  fix: 


172  CONSTITUTION    OF    THE    UNITED    STATES. 

its  tariff  of  charges,  a  statute  regulating  the  rates  is  void.  Sloan  v.  Mo. 
Pacific  R.  R.  Co.  2  Cent.  L.  J.  781  ;  Phila.  W.  &  B.  R.  R.  Co.  v.  Bowers, 
4  Houst.  506  ;  contra,  Moore  v.  111.  Cent.  R.  R.  Co.  4  C.  L.  N.  123. 

A  State  legislature  has  the  power  to  regulate  the  rates  to  be  charged  by 
a  railroad  corporation  for  the  transportation  of  freight  or  passengers. 
Chicago  B.  &  Q.  R.  R.  Co.  v.  Iowa,  94  U.  S.  155  ;  Winona  &  St.  Peter 
R.  R.  Co.  94  U.  S.  1 80. 

Taxe§. 

A  State  may  by  contract  based  on  consideration  exempt  the  property  of 
/an  individual  or  corporation  from  taxation  either  for  a  specified  period  or 
\permanently,  and  it  does  not  thereby  relinquish  its  sovereign  power. 
The  taxing  power  may  select  its  objects  of  taxation,  and  this  is  gen- 
erally regulated  by  the  amount  necessary  to  answer  the  purposes  of 
the  State.  The  exemption  of  property  from  taxation  is  a  question  of 
policy  and  not  of  power.  The  act  of  making  the  contract,  so  far  from 
parting  with  any  portion  of  the  sovereignty,  is  an  exercise  of  it.  State 
Bank  v.  Knoop,  16  How.  369;  Ohio  Trust  Co.  v.  Debolt,  16  How. 
416;  s.  C.  i  Ohio  St.  563;  State  v.  Georgia  R.  &  B.  Co.  54  Geo.  423; 
State  v.  County  Court,  19  Ark.  360;  Antoni  v.  Wright,  23  Gratt.  833 ; 
State  v.  Bank,  2  Houst.  99;  Humphrey  v.  Pegues,  16  Wall.  244 }  Home  of 
the  Friendless  v.  Rouse,  8  Wall.  430 ;  Wilmington  Railroad  Co.  v.  Reid, 
13  Wall.  264;  Tomlinson  v.  Branch  Bank,  15  Wall.  460;  People  v.  Au- 
ditor, 7  Mich.  84;  111.  Cent.  R.  R.  Co.  v.  County,  17  111.  291  ;  State  Bank 
-v.  People,  5  HI.  303;  Camden  &  Amboy  R.  R.  Co.  v.  Commissioners,  18 
N.  J.  71  ;  Oliver  v.  Memphis  &  L.  R.  R.  Co.  30  Ark.  128;  Daughdrell  v. 
Life  Ins.  Co.  31  Ala.  91  ;  Bank^.  New  Albany,  n  Ind.  139  ;  State  v.  Berry, 
17  N.  J.  81 ;  Gardner  v.  State,  21  N.  J.  557;  Bank  v.  Edwards,  5  Ired.  516; 
Bank  v.  Deming,  7  Ired.  55;  Municipality  v.  State  Bank,  5  La.  Ann.  394; 
Johnson  v.  Comm.  7  Dana,  338 ;  contra,  Mott  v.  Penn.  R.  R.  Co.  30  Penn. 
9;  Norwalk  Co.  v.  Husted,  3  Ohio  St.  586;  Toledo  Bank  v.  Bond,  I  Ohio 
St.  622 ;  Exchange  Bank  v.  Hines,  3  Ohio  St.  I ;  Milan  &  R.  Plank  Road 
Co.  v.  Husted,  3  Ohio  St.  578;  Sandusky  Bank  v.  Wilbor,  7  Ohio,  481. 

The  taxing  powei  is  of  vital  importance  and  essential  to  the  existence 
of  government.  The  relinquishment  of  such  a  power  is  never  to  be  as- 
sumed. The  whole  community  is  interested  in  retaining  it  undiminished, 
and  has  a  right  to  insist  that  its  abandonment  ought  not  to  be  presumed  in 
a  case  in  which  the  deliberate  purpose  of  the  State  to  abandon  it  does  not 
appear.  Providence  Bank  v.  Billings,  4  Pet.  514;  Judson  v.  State,  Minor, 
150;  Brewster  v.  Hough,  10  N.  H.  138  ;  Del.  Railroad  Tax,  18  Wall.  206 ; 
City  v.  Boatman's  Ins.  &  Trust  Co.  47  Mo.  1 50  ;  State  v.  Dulle,  48  Mo.  282 ; 
Easton  Bank  v.  Comm.  10  Penn.  442  ;  Gordon  v.  Baltimore,  5  Gill,  231  ; 
Phila.  &  W.  R.  R.  Co.  v.  State,  10  How.  376 ;  Bank  of  Penn.  v.  Comm. 
19  Penn.  144;  State  v.  Minton,  23  N.  J.  529. 

The  imposition  of  a  tax  upon  a  corporation  does  not  impair  the  obliga- 


TAXES.  I  73 

tion  of  its  charter,  unless  there  is  an  express  clause  therein  exempting  the  /" 
corporation  from  taxation.     Providence  Bank  v.  Billings,  4  Pet.  514;  Port- 
land Bank  v.  Apthorpe,  12  Mass.  252  ;  Judson  v.  State,  Minor,  150;  North 
Mo.  Railroad  v.  Maguire,  20  Wall.  46  ;    S.  C.  49  Mo.  490 ;    Erie  Railway 
Company  z/.  Pennsylvania,  21  Wall.  492. 

The  mere  reservation  in  a  charter  of  a  sum  to  be  paid  annually  into  the 
treasury  does  not  contain  an  implied  contract  that  no  further  tax  shall  be 
imposed.  State  z/.  Petway,  2  Jones  Eq.  396  ;  Minot  z>.  P.  W.  &  B.  R.  R. 
Co.  2  Abb.  C.  C.  323 ;  Erie  R.  R.  Co.  v.  Comm.  3  Brews.  368 ;  Del.  Rail- 
road Tax,  1 8  Wall.  206  ;  S.  C.  7  Phila.  555  ;  Louisville  C.  &  L.  R.  R.  Co.  z/. 
Comm.  10  Bush,  43  ;  Evansville,  H.  &  N.  R.  R.  Co.  v.  Comm.  9  Bush,  438  ; 
State  v.  Parker,  32  N.  J.  426. 

A  provision  in  the  charter  of  an  eleemosynary  corporation,  or  of  a  uni-  \ 
versity  for  learning,  that  its  property  shall  be  exempt  from  taxation,  is  a 
contract  whose  obligation  can  not  be  impaired.     Home  of  the  Friendless 
v.  Rouse,  8  Wall.  430 ;  Washington  University  v.  Rouse,  8  Wall.  439 ;  s.  C. 
42  Mo.  308. 

If  the  charter  stipulates  that  the  corporation  shall  pay  certain  taxes  an- 
nually in  lieu  of  all  taxes  to  which  it  would  otherwise  be  subject,  the  amount 
of  taxes  can  not  be  subsequently  increased.  State  v.  Auditor,  5  Ohio  St. 
444 ;  Ross  County  Bank  v.  Lewis,  5  Ohio  St.  447  ;  Le  Roy  v.  East.  S.  C. 
Railway,  18  Mich.  233;  Farmers'  Bank  v.  Comm.  6  Bush,  126;  State  Bank 
z>.  Knoop,  16  How.  369;  Mechanics'  Bank  v.  Debolt,  18  How.  380;  s.  C. 
i  Ohio  St.  591  ;  State  v.  Commissioners,  37  N.  J.  240;  Franklin  Bank  v* 
State,  i  Black,  474;  State  v.  Commercial  Bank,  7  Ohio,  125;  Wright  v. 
Sill,  2  Black,  544 ;  Jefferson  Bank  v.  Skelly,  I  Black,  436 ;  S.  C.  9  Ohio  St.. 
606 ;  Matheny  v.  Golden,  5  Ohio  St.  361  ;  Dodge  v.  Woolsey,  18  How.  331 ; 
Mechanics'  Bank  z/.  Thomas,  18  How.  384  ;  contra,  Norwalk  Co.  v.  Husted, 
3  Ohio  St.  586  ;  Toledo  Bank  v.  Bond,  I  Ohio  St.  622 ;  Exchange  Bank  v. 
Hines,  3  Ohio  St.  i  ;  Milan  &  R.  Plank  Road  Co.  z/.  Husted,  3  Ohio  St.  578  ; 
Sandusky  Bank  v.  Wilbor,  7  Ohio,  481. 

If  the  charter  stipulates  that  the  property  of  the  corporation  shall  be 
exempt  from  taxation,  no  tax  can  be  levied  or  assessed  thereon.  Hardy  z>. 
Waltham,  24  Mass.  108. 

If  the  charter  exempts  property  used  for  the  actual  and  necessary  pur- 
poses of  the  corporation,  a  tax  may  be  levied  upon  land  leased  to  others, 
and  not  used  for  the  purposes  of  the  corporation.  State  z/.  Love,  37 
N.  J.  60. 

If  the  charter  exempts  property  used  for  the  actual  and  necessary  pur- 
poses of  the  corporation,  no  tax  can  be  levied  upon  property  used  in  the 
business  of  the  corporation,  although  it  may  be  used  also  by  others.  State 
v.  Betts,  24  N.  J.  555. 


174  CONSTITUTION    OF    THE    UNITED    STATES. 

If  a  round  sum  or  an  annual  charge  is  paid,  or  contracted  to  be  paid,  as 
the  consideration  for  the  grant  of  a  franchise,  the  contract  is  a  limitation 
'  upon  the  taxing  power  to  impose  any  further  tax  on  the  franchise.  The 
price  is  paid  for  the  use  of  the  privilege  while  it  lasts,  and  any  tax  upon  it 
would  substantially  be  an  addition  to  the  price.  Gordon  v.  Appeal  Tax 
Court,  3  How.  133;  s.  C.  5  Gill,  231  ;  Att.  Gen.  v.  Bank  of  Charlotte,  4 
Jones  Eq.  287  ;  vide  Minot  v.  P.  W.  &  B.  R.'R.  Co.  2  Abb.  C.  C.  323; 
S.  C.  1 8  Wall.  206  ;  7  Phila.  555  ;  Mayor  v.  Bait.  &  O.  R.  R.  Co.  6  Gill, 
288. 

It  is  not  necessary  that  a  bonus  shall  be  paid  in  order  to  render  the 
contract  for  exemption  binding.  The  obligation  is  as  strong  on  the  State 
for  the  privileges  granted  and  accepted  as  if  a  bonus  were  paid.  State 
Bank  v.  Knoop,  16  How.  369. 

A  provision  fixing  the  mode  in  which  the  taxes  shall  be  assessed  does 
not  preclude  the  legislature  from  adopting  another  mode.  Bailey  v.  Ma- 
.guire,  22  Wall.  215  ;  State  v.  Han.  &  St.  Jo.  R.  R.  Co.  60  Mo.  143. 

Where  the  charter  exempts  the  property  and  franchise  of  the  corpora- 
tion from  taxation  for  a  certain  period,  and  after  that  time  provides  that 
the  State  may  tax  the  capital  stock  not  exceeding  a  certain  arnpunt,  the 
State,  after  the  expiration  of  the  time,  can  not  tax  the  property  and  the 
franchise,  for  the  limitation  to  a  particular  mode  includes  a  negative  pf 
every  other  mode.  Raleigh  &  G.  R.  R.  Co.  v.  Reid,  64  N.  C.  155  ;  S.  C. 
13  Wall.  269. 

Where  the  charter  provides  that  a  tax  to  be  levied  on  the  happening  of 
some  future  contingency,  shall  be  in  lieu  of  all  other  taxes,  no  tax  can  be 
levied  prior  to  that  time.  McGavisk  v.  State,  34  N.  J.  509. 

A  grant  of  all  the  rights,  powers  and  privileges  conferred  by  the  char- 
ter of  another  corporation,  includes  an  exemption  from  taxation  conferred 
by  an  amendment  of  its  charter  then  in  force.  Humphrey  v.  .Pegues,  16 
Wall.  244. 

A  statute  merely  exempting  property  from  taxation,  without  any  con- 
sideration, does  not  savor  of  a  contract,  and  may  be  repealed.  Hospital  v. 
Philadelphia,  24  Penn.  229;  Sandusky  Bank  v.  Wilbor,  7  Ohio  St.  481 ; 
St.  Louis  I.  M.  &  S.  R.  Co.  v.  Loftin,  30  Ark.  693 ;  People  v.  Commission- 
ers, 47  N.  Y  501 ;  S.  C.  53  Barb.  70  ;  State  v.  County  Treasurer,  4  Rich. 
N.  S.  520;  Holly  Springs  S.  &  I.  Co.  v.  Marshall,  52  Miss.  281. 

If  property  is  given  to  an  ecclesiastical  society,  for  certain  purposes, 
during  the  existence  of  a  statute  enacting  that  property  so  given  shall 
be  exempt  from  taxation,  it  can  not  be  taxed  as  long  as  it  is  applied  to 
those  purposes,  for  the  statute  was  a  contract  with  the  donors  under  which 
the  property  was  given,  and  no  subsequent  legislature  can  divest  the  right 
thus  vested  in  the  society.  Atwater  v.  Woodbridge,  6  Conn.  223 ;  Osborne 


TAXES.  I  75 

i>.  Humphrey,  7  Conn.  335;  Landon  v.  Litchfield,  n  Conn.  251  ;  Seymour 
<v.  Hartford,  21  Conn.  481 ;  Parker  v.  Redfield,  10  Conn.  490;  Herrick  v. 
Randolph,  13  Vt.  525  ;  contra,  Brainerd  v.  Colchester,  31  Conn.  407;  Lord 
z/.  Litchfield,  36  Conn.  116. 

The  mere  existence  of  a  statute  exempting  lands  sequestered  to  public, 
pious  and  charitable  uses,  from  taxation  at  the  time  of  the  making  of  a 
grant  by  the  State  to  a  municipal  corporation  of  land  for  the  maintenance 
of  the  ministry,  does  not  make  it  a  condition  of  the  grant,  so  as  to  exempt 
the  land  from  subsequent  taxation.  Herrick  v.  Randolph,  13  Vt.  525. 

A  statute  which  provides  that  lands  granted  to  public,  pious  or  charita- 
ble uses,  shall  be  forever  exempt  from  taxation,  has  no  effect  upon  prior 
grants,  except  while  it  remains  in  force,  and  may  be  repealed.  Herrick  z/. 
Randolph,  13  Vt.  525. 

If  a  statute  exempts  lands  granted  to  a  public  or  charitable  use  from 
taxation,  a  subsequent  statute  may  render  such  land  liable  to  taxation 
where  it  is  conveyed  without  the  reservation  of  an  annual  rent.  New 
Haven  u.  Sheffield,  30  Conn.  160;  Brainerd  v.  Colchester,  31  Conn.  407; 
Lord  v.  Litchfield,  36  Conn.  116. 

If  the  exemption  is  spontaneous,  and  no  service  or  duty  or  other  re- 
munerative condition  is  imposed  on  the  corporation,  it  is  a  mere  privilege, 
and  may  be  withdrawn  at  any  time.  Rector  z>.  Philadelphia,  24  How.  300; 
S.  C.  24  Penn.  229;  Brainerd  v.  Colchester,  31  Conn.  407 ;  Lord  v.  Litch- 
field, 36  Conn.  116;  Tucker  v.  Ferguson,  22  Wall.  527. 

An  exemption  of  the  capital  of  a  corporation  from  taxation  extends  to 
additional  capital  permitted  under  subsequent  acts.  State  V.  N.  &  W.  R. 
R.  Co.  30  Conn.  290. 

The  State  can  not  authorize  a  municipal  corporation  to  impose  a  tax 
which  the  State  itself  has  no  right  to  levy.  O'Donnell  v.  Bailey,  24  Miss. 
386  ;  Camden  &  Amboy  R.  R.  Co.  V.  Hillegas,  18  N.  J.  n  ;  Camden  & 
Amboy  R.  R.  Co.  v.  Commissioners,  18  N.  J.  71. 

A  provision  in  a  charter  that  a  certain  rate  of  taxes  shall  be  paid  in  lieu 
of  all  taxes  to  the  State  does  not  exempt  the  corporation  from  liability  for 
municipal  taxes.  Lexington  z/.  Aull,  30  Mo.  480 ;  Paris  v.  Farmers'  Bank, 
30  Mo.  575- 

A  provision  exempting  a  corporation  from  taxation  applies  not  merely 
to  the  State,  but  to  every  public  corporation  created  by  it.  City  of  Rich- 
mond v.  R.  &  D.  R.  R.  Co.  21  Gratt.  604 ;  Mayor  v.  Bait.  &  Ohio  R.  R. 
Co.  6  Gill,  288  ;  Bank  of  Cape  Fear  v.  Edwards,  5  Ired.  516;  State  Bank 
v.  Charleston,  3  Rich.  342. 


\ 


i;6  CONSTITUTION    OF    THE    UNITED    STATES. 

An  exemption  from  taxation  by  the  State  does  not  exempt  the  corpora- 
tion from  taxation  for  county  purposes.  Pacific  R.  R.  Co.  v.  Cass,  53 
Mo.  17. 

An  exemption  from  State  and  county  taxes  does  not  relieve  the  corpora- 
tion from  taxes  imposed  upon  its  property  by  a  city  for  municipal  purposes. 
City  v.  Han.  &  St.  Jo.  R.  R.  Co.  39  Mo.  476. 

If  the  charter  merely  exempts  the  corporation  from  State  and  county 
taxes,  the  corporation  will  be  liable  to  a  school  tax.  Livingston  v.  Han.  & 
St.  Jo.  R.  R.  Co.  60  Mo.  516. 

So  long  as  a  corporation  uses  its  property  for  the  purposes  for  which  it 
was  organized,  it  is  entitled  to  the  right  of  exemption  from  taxation  under 
its  charter.  Washington  University  v.  Rouse,  8  Wall.  439 ;  S.  C.  42  Mo. 
308. 

An  exemption  of  the  property  of  a  corporation  includes  all  which  is 
obviously  appropriate  and  convenient  to  parry  into  effect  the  franchise 
granted.  State  v.  Hancock,  35  N.  J.  537 ;  s.  c.  33  N.  J.  315;  State  «/. 
Woodruff,  36  N.  J.  94. 

The  exemption  is  limited  to  such  acquisitions  as  are  incident  to  the  ex- 
istence of  the  corporation,  to  its  objects  and  its  uses,  and  are  expedient 
and  necessary  for  the  full  enjoyment  of  its  franchises.  State  v.  Newark, 
26  N.  J.  519  ;  S.  C.  25  N.  J.  315  ;  State  v.  Georgia  R.  R.  &  B.  Co.  54  Geo. 
423  ;  State  v.  Mansfield,  23  N.  J.  510;  State  v.  Haight,  25  N.  J.  40;  Ver- 
mont C.  R.  R%Co.  v.  Burlington,  28  Vt.  193  ;  State  v.  Flavell,  24  N.  J.  370; 
State  v.  Powers,  24  N.  J.  400 ;  State  v.  Blundell,  24  N.  J.  402 ;  State  v. 
Collector,  26  N.  J.  519 ;  State?/.  Collector,  38  N.  J.  270  ;  Cook  v.  State,  33 
N.  J.  474- 

If  a  charter  contains  an  exemption,  the  corporation  may  yield  a  part  of 
the  exemption  and  accept  other  terms  in  lieu  thereof,  without  surrendering 
the  whole.  State  v.  Commissioners,  37  N.  J.  240. 

A  provision  exempting  the  property  of  a  corporation  from  taxation,  ex- 
empts the  real  and  personal  estate  required  for  the  successful  prosecution 
of  its  business.  Wilmington  Railroad  Co.  v.  Reed,  13  Wall.  264. 

A  contract  not  to  tax  a  railroad  company  or  its  property,  is  broken  by 
the  levy  of  a  tax  upon  its  gross  receipts  for  the  transportation  of  freight  and 
passengers.  Pacific  Railroad  v.  Maguire,  20  Wall.  36;  s.  C.  51  Mo.  142. 

/    If  the  charter  is  renewed  without  a  renewal  of  the  exemption  from 
taxation,  the  power  to  tax  is  revived.     State  v.  "Bank,  2  Houst.  99. 

A  contract  exempting  the  franchise  from  taxation,  will  not  exempt  the 
stockholders  from  taxation  on  account  of  their  stock.  A  franchise  is  re- 


TAXES.  177 

cognized  as  property.     The  capital  attached  to  the  franchise  is  another  ^ 
property,  owned  in  its  parts  by  persons  corporate  or  natural,  for  which  they  / 
are  liable  to  be  taxed,  as  they  are  for  all  other  property.     Gordon  v.  Ap- 
peal Tax  Court,  3  How.  133  ;  S.  C.  5  Gill,  231. 

The  bonds  of  a  corporation  are  liable  to  taxation,  although  the  corpora- 
tion is  exempt.  State  v.  Branin,  23  N.  J.  484. 

If  the  corporation  is  exempt  from  taxation,  the  State  can  not  tax  the 
shares  of  the  stockholders.  State  v.  Branin,  23  N.  J.  484 ;  State  v.  Pow- 
ers, 24  N.  J.  400  ;  State  v.  Bentley,  23  N.  J.  532. 

If  the  charter  exempts  the  stock  from  liability  to  taxation,  the  State 
can  not  levy  a  tax  upon  the  property  held  by  the  corporation.  Ordinary  v. 
Central  R.  R.  Co.  40  Geo.  646 ;  New  Haven  v.  City  Bank,  31  Conn.  106 ; 
Tax  Cases,  12  G.  &  J.  117. 

The  exemption  of  the  capital  stock  of  a  bank  from  any  greater  impost 
than  that  which  is  specified  in  its  charter,  does  not  exonerate  the  dividends 
of  the  stockholders  from  such  taxes  as  the  legislature  from  time  to  time 
may  think  proper  to  impose.  State  v.  Petway,  2  Jones  Eq.  396. 

A  provision  that  a  bank  shall  be  exempt  from  further  taxation,  exempts 
the  stockholders  from  taxation  on  account  of  the  stock  which  they  own  in 
the  bank.  Gordon  v.  Appeal  Tax  Court,  3  How.  133;  S.  C.  5  Gill,  231. 

If  the  charter  makes  a  distinction  between  capital  stock  and  property, 
a  tax  may  be  laid  on  the  property  although  the  capital  stock  is  exempt. 
St.  Louis  I.  M.  &  S.  R.  R.  Co.  30  Ark.  693. 

If  the  charter  merely  exempts  the  capital,  the  property  of  the  corpora- 
tion is  liable  to  taxation.  Municipality  v.  Commercial  Bank,  5  Rob.  (La.) 
151. 

A  provision  exempting  the  property  of  a  corporation  from  taxation,  ex- 
empts its  franchise.  Wilmington  Railroad  Co.  v.  Reid,  13  Wall.  264. 

If  a  statute  allowing  a  corporation  to  unite  with  others,  creates  a  new 
corporation,  the  exemption  from  taxation  contained  therein  may  be  re- 
pealed, if  the  State  Constitution  then  in  force  made  all  charters  repealable, 
although  the  old  charter  could  not  have  been  repealed.  State  v.  Northern 
Central  R.  R.  Co.  44  Md.  131. 

An  exemption  from  taxation  exempts  the  corporation  from  assessments 
for  damages  and  expenses  in  opening  streets,  where  they  are  assessed 
without  regard  to  benefits.  State  v.  Newark,  27  N.  J.  185. 

If  the  charter  exempts  the  corporation  from  all  taxes  and  assessments 
whatever,  the  corporation  is  not  liable  for  assessments  for  grading  streets. 
St.  Paul  &  Pac.  R.  R.  Co.  v.  St.  Paul,  21  Minn.  526. 
12 


178  CONSTITUTION    OF    THE    UNITED    STATES. 

A  provision  exempting  the  corporation  from  taxation,  applies  to  its 
property  as  well  as  its  franchises.  Camden  &  Amboy  R.  R,  Co.  v.  Com- 
missioners, 1 8  N.  J.  71. 

A  mere  provision  in  the  charter  of  a  passenger  railway  company,  for 
the  payment  of  a  certain  license  fee  for  each  car,  does  not  prevent  the 
legislature  from  imposing  a  higher  license  fee.  Union  Passenger  Railway 
Co.  v.  Philadelphia,  34  Leg.  Int.  330. 

An  exemption  in  a  charter  from  all  taxation  is  an  exemption  from  a 
privilege  tax.  Grand  Gulf  &  P.  B.  R.  Co.  v.  Buck,  53  Miss.  246. 

If  the  land  is  exempt,  the  buildings  erected  on  it  are  also  exempt.  Os- 
borne  v.  Humphrey,  7  Conn.  335. 

Where  the  exemption  is  from  taxes  and  assessments,  the  words  must 
be  taken  to  refer  to  the  ordinary  public  taxes  and  assessments,  and  do  not 
exempt  the  corporation  from  an  assessment  of  benefits  for  opening  a  street. 
State  Home-Society  v.  Mayor,  35  N.  J.  157;  City  V.  Society,  24  N.  J.  385; 
Mayors.  Proprietor^,  7  Md.  517  ;  Sheehan  v.  Good  Samaritan  Hospital, 
50  Mo.  155. 

The  payment  of  taxes  for  twenty  years  will  not  prevent  the  owner  from 
claiming  the  exemption.  Landon  v.  Litchfield,  n  Conn.  251. 

When  two  corporations  are  consolidated  into  one,  an  exemption  from 
taxation,  contained  in  th§  charter  of  one  of  such  corporations,  will  not,  by 
such  consolidation,  be  extended  to  the  property  of  the  other  whose  charter 
contained  no  such  exemption.  Phil.  W.  &  B.  R.  R.  Co.  v.  State,  10  How. 
376;  Tomlinson  v.  Branch,  15  Wall.  460 ;  Del.  Railroad  Tax,  18  Wall 
206  ;  Evansville  H.  &  N.  R.  R.  Co.  v.  Comm.  9  Bush,  438. 

If  the  charter  exempts  the  shares  of  the  capital  stock  from  taxation,  an 
act  imposing  a  tax  on  the  franchise  or  property  of  the  corporation  is  in- 
valid. Han.  &  St.  Jo.  R.  R,  Co.  v.  Chacklett,  30  Mo.  550;  State  v.  Han. 
£  St.  Jo.  R.  R.  Co,  37  Mo.  265 ;  Mayor  v.  Bait.  &  O.  R.  R.  Co.  6  Gill, 
288  ;  Nichols  v.  N.  H.  &  N.  Co.  42  Conn.  103. 

If  the  stock  is  exempt  from  taxation,  no  tax  can  be  levied  on  a  branch 
road  which  the  corporation  was  authorized  to  construct  by  an  amendment 
of  its  charter.  A.  &  G.  R.  R.  Co.  v.  Allen,  1 5  Fla.  637. 

If  a  bank,  in  consideration  of  the  payment  annually  of  a  certain  sum 

f  upon  its  capital  stock,  purchase  from  the  State  the  privilege  of  employing 

it  in  banking  operations,  a  law  which  imposes  in  addition  thereto  an  annual 

tax  on  the  same  capital  thus  employed,  does  impair  the  obligation  of  the 

contract.     Union  Bank  v.  State,  9  Yerg.  490. 

If  a  statute  grants  land  to  a  corporation  to  hold  forever,  with  power  to 


EMINENT    DOMAIN.  179 

lease  and  to  collect  a  sum  in  addition  to  the  rent  equal  to  the  tax  imposed  by 
the  State,  and  provides  that  the  land  shall  forever  be  exempt  from  taxation, 
this  privilege  will  not  pass  to  a  purchaser  whose  purchase  is  made  under  a 
subsequent  statute  authorizing  a  sale,  and  virtually  repealing  the  first  stat- 
ute. Armstrong  v.  Treasurer,  16  Pet.  281 ;  s.  C.  10  Ohio,  235. 

If  the  lessee  of  land  which  is  exempt  from  taxation,  covenants  to  pay 
such  taxes  as  may  be  imposed  thereon,  he  can  not  allege  the  unconstitu- 
tionally of  an  act  imposing  a  tax.  Hart  v.  Cornwall,  14  Conn.  228. 

If  the  land  is  exempt  from  taxation,  it  will  be  exempt  in  the  hands  of  a 
lessee.  Hardy  v.  Waltham,  24  Mass.  108  ;  Osborne  v.  Humphrey,  7 
Conn.  335;  Landon  v.  Litchfield,  n  Conn.  251  ;  Matheny  v.  Golden,  £ 
Ohio  St.  361  ;  Kumler  v.  Traber,  5  Ohio  St.  442. 

If  the  lessee  of  a  railroad  agrees  to  pay  all  taxes  assessed  upon  the 
property  of  the  corporation,  a  tax  on  him  in  respect  of  his  profits  and 
earnings  by  the  transportation  of  passengers  and  property,  does  not  in- 
fringe a  provision  in  the  charter,  exempting  the  corporation  from  taxation. 
State  v.  Del.  L.  &  W.  R.  R.  Co.  30  N.  J.  473 ;  s.  C.  31  N.  J.  531. 

If,  by  terms  of  the  lease,  the  buildings  are  not  considered  as  a  part  of 
the  lands,  and  an  interest  in  them  is  created  entirely  distinct  from  an  in7 
terest  in  the  lands,  the  buildings  may  be  taxed  although  the. .land  is  ex- 
empt. Parker  v.  Redfield,  10  Conn.  490. 

If  the  charter  of  a  library  corporation  authorizes  it  to  build  and  rent  a 
library  building,  and  exempts  its  property  from  taxation,  the  parts  which 
are  leased  as  stores  are  exempt.  State  v.  Leester,  29  N.  J.  541. 

If  the  State  makes  the  immunity  from  taxation  transferable,  it  can  not 
tax  the  property  in  the  hands  of  a  purchaser.  St.  Paul  &  Pac.  R.  R.  Co.  v. 
Parcher,  14  Minn.  297  ;  State  v.  Winona  &  St.  Paul  R.  R.  Co.  21  Minn. 
315 ;  A.  &  G.  R.  R.  Co.  v.  Allen,  15  Fla.  637. 

If  the  charter  merely  exempts  the  corporation  and  its  property  from  tax- 
ation, the  exemption  does  not  pass  to  a  party  who  purchases  the  property 
at  a  sale  under  a  mortgage  or  execution.  Morgan  v.  Louisiana,  93  U.  S. 
217  ;  Trask  v.  Maguire,  18  Wall.  391. 

Eminent  Domain. 

A  grant  is  always  understood  to  be  made  subject  to  those  reserved 
rights  in  the  State,  which  are  indispensable  to  State  sovereignty.  These 
reserved  rights  of  sovereignty,  which  are  denominated  the  right  of  eminent 
domain,  always  exist  as  a  condition  or  implied  reservation  in  all  grants. 
Hence,  the  legislature  may  take  the  benefit  of  the  grant  of  a  corporate 
franchise  from  the  grantee  for  public  use.  Armington  v.  Barnet,  15  Vt. 
745  ;  Enfield  Bridge  Co.  v.  Railroad,  17  Conn,  40;  Piscataqua  Bridge  Co. 


l8o  CONSTITUTION    OF    THE    UNITED    STATES. 

v.  N.  H.  Bridge  Co.  7  N.  H.  35  ;  Boston  Water  Power  Co.  v.  Railroad, 
40  Mass.  360 ;  Barber  v.  Andover,  8  N.  H.  398  ;  James  River  Co.  v. 
Thompson,  3  Gratt.  270 ;  West  River  Bridge  Co.  v.  Dix,  6  How.  507  ; 
S.  C.  1 6  Vt.  446;  Richmond  R.  R.  Co.  V.  Louisa  R.  R.  Co.  13  How.  71 ; 
Newcastle  R.  R.  Co.  z/.  Peru  &  Ind.  R.  R.  Co.  3  Ind.  464 ;  Shorter  v. 
Smith,  9  Geo.  517  ;  Boston  v&  L.  R.  R.  Co.  v  Salem  &  L.  R.  R.  Co.  68 
Mass,  i;  Northern  Railroad  v.  Concord  Railroad,  27  N.  H.  183;  Central 
Bridge  v.  Lowell,  70  Mass.  474 ;  Red  River  Bridge  Co.  v.  Clarksville,  I 
Sneed,  176;  Crosbys.  Hanover,  36  N.  H.  404. 

The  tenure  by  which  a  corporation  holds  its  property,  forms  no  part  of 

that  which  is  of  the  essence  of  its^  charter.     There  is,  therefore,  nothing 

in  the  charter  which  can  be  so  construed  as  to  prevent  the  taking  of  the 

property  for  public  usesV-  4ja.  &"Fla.  R.  R.  Co.  v.  Kenney,  39  Ala.  307  ; 

Bellona  Company's  Case,  3  Bland,  44-2^  Backus  v.  Lebanon,  n  N.  H.  19  ; 

Turnpike  Co.  v.  Railroa^  Co.  10  G.  &  J-_J392  ;    Boston   Water  Power  Co. 

v.  Railroad,  40  Mass.  360  ;  Tuckahoe  Canal  Co.  v.  Railroad,  1 1  Leigh,  42 ; 

-    Crosby  v.  Hanover,  36  ft.  H.  404;  In  re  Kerr}  42  Barb.  119;  White  River. 

/\     Turnpike  Co.  v.  Railroad  Co.  21  Vt.  590. 

The  reservation  of  a  right  to  resume  the  charter  at  the  end  of  a  cer- 
tain period,  upon  certain  terms,  does  not  prevent  the  legislature  from  exer- 
cising the  authority  of  eminent  domain,  by  taking  a  part  of  the  property  of 
the  corporation.  Backus  v.  Lebanon,  n  N.  H.  19;  Barber  v.  Andover,  8 
N.H.  398. 

The  legislature  may  authorize  the  laying  out  of  a  common  public  high- 
way over  a  road  made  by  a  turnpike  corporation,  although  the  charter  is 
still  in  good  force,  provided  compensation  is  made  to  the  corporation  for 
the  property  thus  taken  for  public  use.  Barber  v.  Andover,  8  N.  H.  398  ; 
Pierce  v.  Somersworth,  10  N.  H.  369  ;  Armington  v.  Barnet,  15  Vt.  745. 

A  statute  which  impairs  a  right  under  a  charter,  is  unconstitutional  un- 
less it  provides  a  legal  indemnity.  Enfield  Bridge  Co.  v.  Connecticut 
River  Co.  7  Conn.  28. 


Police  Power. 

As  to  their  general  liability  to  legislative  control,  corporations  and  nat- 
ural persons  stand  upon  the  same  ground.  The  great  object  of  an  in- 
corporation is  to  bestow  the  character  and  properties  of  individuality  on  a 
collected  and  changing  body  of  men.  Any  privileges  which  may  exempt 
it  from  the  burdens  common  to  individuals,  do  not  flow  necessarily  from 
the  charter,  but  must  be  expressed  in  it  or  they  do  not  exist.  Thorpe  z/. 
B.  &  P.  R.  R.  Co.  27  Vt.  140;  Peters  v.  Railroad  Co.  23  Mo.  107;  Bank 
•v.  Hamilton,  21  111.  53. 


POLICE    POWER.  l8l 

The  legislature  has  the  same  right  of  general  control  over  corporations 
as  it  has  over  natural  persons.  By  general  laws  it  may  require  them  to 
conform  to  such  regulations  of  a  police  character  as  it  may  deem  proper 
for  the  security  of  the  rights  of  the  citizens  generally,  and  most  conducive 
to  quiet  and  good  order,  and  the  security  of  property.  Nelson  v.  V.  &  C 
R.  Co.  26  Vt.  717;  Thorpe  v.  B.  &  P.  R.  R.  Co.  27  Vt.  140  ;  Benson  v, 
New  York,  10  Barb.  223;  Galena  &  C.  R.  R.  Co.  v.  Loomis,  13  111.  548; 
Ohio  &  M.  R.  R.  Co.  v.  McClelland,  25  111.  140;  N.  W.  Fertilizing  Co.  v. 
Hyde  Park,  70  111.  634 ;  Gorman  v.  Pacific  Railroad,  26  Mo.  441 ;  New  Alb. 
&  S.  R.  R.  Co.  v.  Tilton,  12  Ind.  3  ;  B.  C.  &  M.  Railroad  v.  State,  32  N. 
H.  215  ;  State  v.  Matthews,  3  Jones  (N.  C.)  451. 

There  is  a  distinction  between  those  powers  which  are  secured  to  cor- 
porations by  contract  and  those  which  are  mere  endowments  of  exist- 
ence. The  former  are  their  property,  of  which  they  can  not  be  deprived 
without  just  compensation  ;  the  latter  are  elements  of  existence  imparted 
to  them  by  the  law  of  their  being,  and  are  held  by  them  like  the  natural 
rights  of  natural  persons,  subject  to  be  controlled  and  modified  by  the  legis- 
lature the  same  as  it  may  control  and  modify  the  natural  endowments  of 
natural  persons.  Bank  v.  Hamilton,  21  111.  53. 

Unless  there  is  an  express  provision  or  a  reasonable  intendment  that  a 
right  or  faculty  shall  not  be  touched  by  subsequent  legislation,  it  is  held  in 
the  same  subordination  to  governmental  control  as  the  rights  and  faculties 
of  natural  persons.  Bank  z/.  Hamilton,  21  111.  53. 

A  corporation  which  claims  an  exemption  from  the  general  police  pow- 
er must  show  either  a  relinquishment  of  the  right  in  the  charter,  or  that  its 
exercise  is  inconsistent  with  and  destructive  of  the  particular  rights,  privi- 
leges or  franchises  therein  enumerated.  State  v.  Southern  Pacific  R.  R. 
Co.  24  Tex.  80. 

Powers,  the  exercise  of  which  can  only  be  justified  as  a  police  regula- 
tion, are  such  only  as  are  so  clearly  necessary  to  the  safety,  comfort,  or  well 
being  of  society,  or  so  imperatively  required  by"  the  public  necessity,  as  to 
lead  to  the  rational  and  satisfactory  conclusion  that  the  framers  of  the  Con- 
stitution could  not,  as  men  of  ordinary  prudence  and  foresight,  have  intend- 
ed to  prohibit  their  exercise  in  the  particular  case,  notwithstanding  the  lan- 
guage of  the  prohibition  would  otherwise  include  it.  People  v.  Plank  Road 
Co.  9  Mich.  285. 

The  police  power  of  the  State  comprehends  all  those  general  laws  of 
internal  regulation  which  are  necessary  to  secure  the  peace,  good  order, 
health  and  comfort  of  society.  Phila.  W.  &  B.  R.  R.  Co.  v.  Bowers,  4 
Houst.  506. 

Under  the  color  of  police  laws  the  legislature  can  not  destroy  or  impair 
the  franchise,  or  any  right  or  power  essential  to  its  beneficial  exercise. 


l82  CONSTITUTION    OF    THE    UNITED    STATES. 

Sloan  v.  Mo.  Pacific  R.  R.  Co.  2  Cent.  L.  J.  781 ;  Phila.  W.  &  B.  R.  R. 
Co.  v.  Bowers,  4  Houst.  506. 

The  legislature  has  no  power  to  establish  laws  to  promote  the  mere  con- 
venience of  the  public,  or  of  individuals,  in  contravention  of  the  provisions 
of  the  charter  of  a  private  corporation.  State  v.  Noyes,  47  Me.  189. 

The  legislature  may  at  all  times  regulate  the  exercise  of  the  corporate 
franchise  by  general  laws  passed  in  good  faith  for  the  legitimate  ends  con- 
templated by  the  police  power  of  the  State,  but  it  can  not,  under  color  of 
such  laws,  destroy  or  impair  the  franchise  itself,  nor  any  of  those  rights  and 
powers  which  are  essential  to  its  beneficial  exercise.  Phila.  W.  &  B.  R.  R. 
Co.  -y.  Bowers,  4  Houst.  506  ;  T...W.  &  W.  R.  R.  Co.  v.  City,  67  111.  37. 

It  is  the  province  of  the  legislature  to  determine  when  the  exigency  ex- 
ists calling  for  the  exercise  of  the  police  power,  and  the  province  of  the 
courts  to  decide  Wbaf  are  the  proper  subjects  of  its  exercise.  Lake  View 
v.  kose  Hill-eem.^d  70  11^191. 

A**SS — i 
Any  act  essentially  paralyzing  the  franchise,  or  destroying  the  profits 

arising  therefrom',  is  void,  but  beyond  that  the  entire  power  of  the  legisla- 
tive control  resides  in  the  legislature,  unless  such  power  is  expressly  limit- 
ed in  the  grant  to  the  corporation.  Thorpe  v.  B.  &  C.  R.  R.  Co.  27  Vt.  140. 

So  far  as  railroads  are  concerned,  this  police  power  which  resides  pri- 
marily and  ultimately  in  /the  legislature,  is  twofold.  1st.  The  police  of  the 
roads  which,  in  the  absence  of  legislative  control,  the  corporations  them- 
selves exercise  over  their  operatives,  and,  to  some  extent,  over  all  who  do 
business  with  them,  or  come  upon  their  grounds.  There  is  no  end  of  illus- 
trations upon  this  subject.  It  may  be  extended  to  the  supervision  of  the 
track,  tending  switches,  running  upon  the  time  of  other  trains,  running  a 
road  with  a  single  track,  using  improper  rails,  not  using  proper  precau- 
tions by  way  of  safety  beams  in  case  of  the  breaking  of  axle-trees,  the 
number  of  brakemen  upon  a  train,  with  reference  to  the  number  of  cars, 
employing  intemperate  or  incompetent  engineers  and  servants,  running  be- 
yond a  given  rate  of  speed,  and/a  thousand  similar  things.  2d.  There  is 
also  the  general  police  power  of ;  the  State,  by  which  persons  and  property 
are  subjected  to  all  kinds  of  restraints  and  burdens  in  order  to  secure  the 
general  comfort,  health  and  prosperity  of  the  State.  The  legislature  may 
prohibit  railroads  firom  carrying  freight  which  is  regarded  as  detrimental  to 
the  public  health,  or  morals,  or  the  public  safety  generally,  or  they  may 
probably  be  made  liable  as  insurers  of  the  liyes  and  limbs  of  passengers,  as 
they  virtually  are  of  freight.  Thorpe  v.  B.  &  C.  R.  R.  Co.  27  Vt.  140; 
Nelson  v.  V.  &  C.  R.  Co.  26  Vt.  717. 

The  right  to  regulate  railroad  crossings  flows  naturally  from  the  police 
power  of  the  State.,  P.  £  C.  R.  R.  Co.  v.  S.  W.  P.  R.  R.  Co.  77  Penn. 
173- 


POLICE    POWER.  183 

A  statute  requiring  a  railroad  corporation  to  ,keep  a  flagman  at  an  ordi- 
nary crossing,  where  there  is  no  unusual  danger,  is  void.  T.  W.  &  W.  R. 
R.  Co.  v.  City,  67  111.  37. 

The  legislature  may  require  a  railroad  corporation  to  ring  a  bell  or 
sound  a  whistle  at  public  crossings.  Galena  R.  R.  Co.  v.  Appleby,  28  111. 
283. 

The  legislature  may  require  a  bell  or  whistle  to  be  attached  to  each 
locomotive  engine,  and  to  be  rung  or  whistled  before  crossing  any  other 
road.  Galena  &  C.  R.  R..Co.  v.  Loomis,  13  111.  548. 

A  law  regulating  the  speed  of  trains  in  a  city  is  valid,  although  the 
charter  authorizes  the  corporation  to  fix  and  regulate  the  speed  of  trains  on 
its  road.  C.  B.  &  Q.  R.  R.  Co.  v.  Haggerty,  67  111.  113. 

A  statute  requiring  railroad  corporations  to  construct  fences  and  cattle 
guards  along  the  line  of  their  route  is  valid,  as  a  mere  police  regulation  for 
the  safety  of  passengers  and  the  security  of  animals.  Blair  v.  Mil.  &  P.  R. 
R.  Co.  20  Wis.  254 ;  Penn.  R.  R.  Co.  v.  Riblet,  66  Penn.  164  ;  Nichols  v. 
Som.  &  Ken.  R.  R.  Co.  43  Me.  356  ;  New  Alb.  &  S.  R.  R.  Co.  v.  Tilton, 
12  Ind.  3;  Jones  v.  G.  &  C.  R.  R.  Co.  16  Iowa,  6;  Wenona  &  St.  Peter  R. 
R.  Co.  v.  Waldron,  11  Minn.  515  ;  Suydam  v.  Moore,  8  Barb.  358;  Thorpe 
•v.  B.  &  C  R.  R.  Co.  27  Vt.  140;  Indianapolis  R.  R.  Co.  v.  Kercheval,  16 
Ind.  84  ;  Ohio  &  M.  R,  R.  Co.  v.  McClelland,  25  111.  140;  Nelson  v.  V.  & 
C.  R.  R.  Co.  26  Vt.  717 ;  Waldron  v.  Railroad  Co.  8  Barb.  390;  K.  P.  R. 
R.  Co.  v.  Mower,  16  Kans  573;  Gorman  v.  Pacific  R.  R.  Co.  26  Mo.  441 ;' 
Madison  &  Ind.  R.  R.  Co.  v.  Whiteneck,  8  Ind.  217. 

A  statute  passed  after  the  granting  of  the  charter  may  render  railroad 
corporations  liable  for  injuries  caused  by  fire  communicated  from  their 
engines.  Lyman  v.  B.  &  W.  R.  R.  Co.  58  Mass.  288;  Rodemacher  v. 
Mil.  &  St.  P.  R.  R.  Co.  41  Iowa,  297. 

A  statute  imposing  a  penalty  upon  a  corporation  for  taking  unlawful 
toll  or  freight  does  not  impair  any  right  under  the  charter,  for  its  only  ob- 
ject is  to  compel  the  corporation  to  fulfill  the  contract.  It  neither  violates, 
nor  suffers  a  violation  of  the  charter.  Camden  &  Amboy  R.  R.  Co.  i>. 
Briggs,  22  N.  J.  623;  Norris  v.  Androscoggin  R.  R.  Co.  39  Me.  273. 

A  statute  making  railroad  corporations  criminally  liable  for  the  negli- 
gence and  misconduct  of  their  employees  is  valid.  B.  C.  &  M.  Railroad  v. 
State,  32  N.  H.  215. 

The  legislature  may  authorize  the  appointment  of  commissioners  to 
determine  the  duties  and  obligations  of  railroad  companies  who  are 
authorized  to  connect  their  roads.  Portland  R.  R.  Co.  v.  Railway  Co.  46 
Me.  69. 


184  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  law  which  prohibits  a  railroad  corporation  from  constructing  or 
maintaining  a  track  on  any  highway,  so  near  any  depot  of  another  railroad 
as  to  endanger  the  safe  and  convenient  access  thereto  Jor,  ordinary  purposes,, 
is  valid  as  a  police  regulation.  P.  S.  &  P.  R.  R.  Co.  v.  B.  &  M.  R.  R.  Co. 
65  Me.  122. 

A  State  may  pass  an  act  for  the  purpose  of  preventing  an  unjust  dis- 
crimination in  railway  freights,  whether  as  between  individuals  or  commu- 
nities, and  enforce  its  observance  by  appropriate  penalties.  C.  &  A.  R.  R. 
Co.  v.  People,  67  111.  n, 

A  statute  requiring  a  railroad  corporation  to  build  a  depot  for  freight 
and  passengers  at  a  certain  place  on  its  road  is  valid.  Railroad  Commis- 
sioners v.  P.  &  O.  C.  R.  R.  Co.  63  Me.  269. 

Where  the  charter  merely  gives  an  implied  right  to  take  some  toll,  the 
legislature  may  regulate  the  rate  of  tolls  for  the  transportation  of  freight 
and  passengers.  Winona  &  St.  P.  R.  R.  Co.  v.  Blake,  94  U.  S.  180;  s.  C, 
19  Minn.  418  ;  C.  B.  &  Q.  R.  R.  Co.  v.  Iowa,  94  U.  S.  155. 

The  imposition  of  a  penalty  upon  banks  for  a  refusal  to  pay  their  bank 
bills  is  not  unconstitutional,  unless  there  is  some  clause  in  the  charter  pro- 
hibiting such  a  law.  Brown  v.  Penobscot  Bank,  8  Mass.  445. 

The  power  to  regulate  fares  is  not  affected  by  the  fact  that  the  corpora- 
tion has  pledged  its  income  for  the  security  of  its  debts,  and  leased  the 
road  to  a  tenant  who  relies  upon  the  earnings  for  the  means  of  paying  the 
rent.  C.  B.  &  Q.  R.  R.  Co.  v.  Iowa,  94  U.  S.  155. 

If  the  charter  provides  that  the  corporation  may  obtain  judgment  on 
motion,  after  notice  for  twenty  days,  against  a  stockholder  who  fails  to  pay 
his  assessments,  the  legislature  may,  at  its  discretion,  modify  and  control 
this  summary  remedy.  Ex  parte  Northeast  R.  R.  Co.  I  Ala.  Sel.  Cas.  608 ; 
S.  C.  37  Ala.  679. 

A  statute  giving  the  legal  representatives  a  right  of  action  for  an  injury 
where  the  party  injured  would  have  had  a  right  of  action  if  death  had  not 
ensued,  does  not  impair  the  obligation  of  a  prior  charter,  for  no  corporation 
has  a  vested  right  to  do  wrong,  or  take  human  life  intentionally  or  negli- 
gently. Southwestern  R.  R.  Co.  v.  Paulk,  24  Geo.  356  ;  Board  v.  Scearce, 
2  Duvall,  576. 

Although  the  charter  authorizes  the  corporation  to  convert  dead  animals 
and  animal  matter  into  a  fertilizer,  yet  a  subsequent  statute  may  prohibit 
the  transportation  thereof  through  a  certain  town.  N.  W.  Fertilizing  Co.  v. 
Hyde  Park,  70  111.  634. 

Although  the  charter  of  a  corporation  contains  a  clause  prohibiting  the 
sale  of  spirituous  liquors  within  a  certain  distance  of  the  corporation,  yet 


POLICE    POWER.  185 

the  State  may  subsequently  license  the  sale  of  liquors  within  that  distance, 
Dingman  v.  People,  51  111.  277. 

If  the  charter  permits  the  corporation  to  buy  and  hold  a  certain  quan- 
tity of  land,  and  use  it  for  cemetery  purposes,  a  subsequent  statute  pro- 
hibiting it  from  using  a  portion  of  the  land  for  that  purpose  is  void.  Lake 
View  v.  Rose  Hill  Cem.  Co.  70  111.  191. 

A  statute  prohibiting  the  sale  of  malt  liquors  does  not  impair  the  obli- 
gation of  a  charter  of  a  corporation  created  for  the  purpose  of  manufacturing 
malt  liquors.  Comm.  z/.  Intoxicating  Liquors,  115  Mass.  153. 

A  statute  prohibiting  lotteries  is  valid,  and  applies  to  a  corporation 
whose  charter  gives  it  the  right  to  establish  lotteries  for  a  certain  period. 
Moore  v.  State,  48  Miss.  147. 

The  State  may  provide  that  a  bank  shall  redeem  several  bills  presented 
together  as  a  single  obligation.  Reaper's  Bank  v.  Willard,  24  111.  433. 

The  legislature  may  require  that  a  certain  proportion  of  the  officers- 
shall  reside  within  the  State.  State  v.  Southern  Pacific  R.  R.  Co.  24 
Tex.  80. 

The  legislature  may  require  that  the  corporation  shall  make  an  annual 
report  of  the  condition  of  its  affairs.  State  v.  Southern  Pacific  R.  R.  Co. 
24  Tex.  80. 

The  State  may  make  a  failure  to  comply  with  a  police  regulation  a 
ground  for  a  forfeiture  of  the  charter.  State  v.  Southern  Pacific  R.  R.  Co. 
24  Tex.  80. 

The  State  may  change  the  mode  of  assessing  the  property  of  a  corpo- 
ration. Bank  v.  Hamilton,  21  111.  53. 

A  statute  rendering  a  corporation  personally  liable  for  the  wages  of 
laborers  employed  by  contractors  under  it  is  valid.  Peters  v.  Railroad  Co. 
23  Mo.  107;  Branin  v.  Conn.  &  P.  R.  R.  Co.  31  Vt.  214;  Grannahan  v. 
Railroad  Co.  30  Mo.  546. 

Although  the  charter  provides  that  the  insurance  company  can  only  be 
sued  on  a  policy  in  the  county  where  it  is  located,  yet  the  legislature  may 
render  the  corporation  liable  to  such  a  suit  in  another  county,  if  it  does  not 
affect  injuriously  any  corporate  right  or  subject  the  corporation  to  any  ad- 
ditional loss  or  liability.  Sanders  v.  Hillsborough  Ins.  Co.  44  N.  H.  238 ; 
Howard  v.  Insurance  Co.  13  B.  Mon.  282. 

Although  the  charter  prescribes  the  mode  in  which  process  may  be 
served  on  the  corporation,  yet  a  subsequent  statute  may  prescribe  a  differ- 
ent mode.  C.  &  F.  R.  R.  Co.  v.  Hecht,  29  Ark.  661. 

The  State  legislature  has  the  power  to  subject  the  property  and  franchise 


1 86  CONSTITUTION    OF    THE    UNITED    STATES. 

of  a  corporation  to  the  payment  of  its  debts,  and  the  exercise  of  such 
power  does  not  impair  the  obligation  of  any  contract  between  the  State 
and  the  corporation.  Louisville  Turnpike  Co.  v.  Lounsbury,  2  Met.  (Ky.) 
165. 

A  statute  providing  for  the  appointment  of  a  receiver  and  the  issuing 
of  an  injunction  to  restrain  the  exercise  of  the  franchise  when  the  corpora- 
tion is  insolvent  or  violates  the  provisions  of  its  charter,  is  constitutional. 
Bank  of  Columbia  z/.  Att.  Gen.  3  Wend.  588 ;  Suydam  v.  Receivers,  3  N. 
J.  Eq.  114;  Savings  Institution  v.  Makin,  23  Me.  360;  Aurora  Turnpike 
Co.  v.  Holthouse,  7  Ind.  59. 

A  statute  reviving  a  corporation  whose  charter  has  been  forfeited,  and 
legalizing  contracts  made  by  it  after  the  forfeiture,  is  valid,  for  it  merely  re- 
moves an  impediment  or  disability  to  the  enforcement  of  contracts  fairly 
-entered  into  by  debtors  with  it.  Bleakney  z/.  Farmers'  Bank,  178.  &  R. 
64  ;  vide  Officer  v.  Young,  5  Yerg.  320. 

A  statute  which  provides  that,  upon  the  institution  of  proceedings  to 
have  a  charter  declared  forfeited,  an  injunction  may  issue  to  prevent  the 
•collection  of  all  demands  due  to  the  corporation,  until  there  is  a  final  judg- 
ment of  forfeiture  or  not,  is  valid,  for  the  legislature  may  suspend  the  right 
of  a  corporation  to  sue  until  the  charge  of  violating  its  charter  is  deter- 
mined. Commercial  Bank  v.  State,  12  Miss.  439;  Comm.  v.  Farmers' 
Bank.  38  Mass.  542. 

A  general  law  passed  after  the  granting  of  a  charter,  but  before  its  ex- 
piration, and  providing  that  all  corporations  should  continue  in  existence 
for  a  certain  period  after  the  expiration  of  their  charters,  for  the  purpose  of 
suing  and  being  sued,  does  not  violate  the  obligation  of  contracts,  but 
provides  a  way  of  enforcing  them  both  in  favor  of  and  against  the  corpo- 
ration. A  debtor  to  the  corporation  can  not  object,  for  the  bringing  of  a 
suit  would  be  an  acceptance  of  a  prolongation  of  the  charter.  The  cor- 
poration can  not  object  to  a  statute  the  object  of  which  is  to  give  a  right 
of  action  upon  contracts  upon  which  it  was  legally  and  morally  bound. 
The  corporation  can  not  object,  for  the  debts  are  an  equitable  lien  upon 
the  stock,  and  the  legislature  has  a  right  to  provide  the  means  of  enforcing 
this  moral  obligation.  Foster  v.  Essex  Bank,  16  Mass.  245. 

A  debtor  to  a  corporation  can  not  object  to  a  statute  reviving  the  cor- 
poration, passed  after  the  expiration  of  its  charter.  A  legislature  which 
limits  itself  to  correcting  mistakes  and  providing  remedies  for  the  further- 
ance of  justice  can  not  be  charged  with  exceeding  its  authority.  Lincoln 
Bank  z/.  Richardson,  I  Me.  79. 

A  statute  which  provides  that  the  debts  due  to  a  corporation  shall  not 
be  released  or  extinguished  by  a  judgment  of  forfeiture,  but  that  a  receiver 
may  be  appointed  with  authority  to  sue  for  and  collect  such  debts,  is  con- 


AMENDMENT.  187 

stitutional.     Nevitt  v.  Bank,   14  Miss.   513;    Hall  v.  Carey,  5  Geo.  239; 
Carey  v.  Giles,  9  Geo.  253  ;  Scearcy  z/.  Stiibbs,  12  Geo.  437. 

Amendment. 

A  charter  may  be  altered  or  modified  with  the  consent  of  the  corpora-  v- 
tion.    Trustees  v.  Winston,  5  Stew.  &  Port.  17;  Ehrenzeller  v.  Canal  Co.  * 
Rawle,  181  ;  Commissioner  v.  Jarvis,  i  Mon.  5;  Monongahela  Nav.  Co.  v. 
Coon,  6  Penn.  379;  S.  C.  6  W.  &  S.  101  ;  People  v.  Marshall,  I  Gilman,672. 

The  assent  of  the  corporation  relates  back  to  the  date  of  the  law. 
Ehrenzeller  v.  Canal  Co.  I  Rawle,  181. 

If  there  is  no  acceptance  of  a  subsequent  act,  the  rights  under  the 
charter  remain  unimpaired.  Pingry  v.  Washburn,  I  Aik.  264;  Allen  v. 
McKeen,  i  Sum.  276  ;  Comm.  v.  Cullen,  13  Penn.  133. 

Where  an  act  provides  for  an  amendment  in  several  particulars,  and 
does  not  expressly  authorize  that  some  may  be  accepted  and  some  rejected 
by  the  corporation,  it  must  be  accepted  as  it  is  offered  or  not  at  all.  Mari- 
etta &  Cin.  R.  R.  Co.  v.  Elliott,  10  Ohio  St.  57. 

An  inference  of  the  assent  of  a  corporation  to  an  alteration  of  its  char- 
ter can  not  be  drawn  from  the  mere  non-user  or  misuser  of  its  franchises. 
Regents  v.  Williams,  9  G.  &  J.  365. 

If  the  funds  of  a  charitable  corporation  accumulate  to  an  amount 
which  not  only  enables  it  to  carry  out  and  perfect  the  specific  charity  which 
gave  rise  to  ;ts  creation,  but  to  leave  a  surplus,  it  may  apply  for  an  amend- 
ment of  the  charter,  so  as  to  be  enabled  to  apply  this  surplus  to  other 
charities.  Att.  Gen.  v.  Clergy  Society,  10  Rich.  Eq.6c>4;  S.  C.  8  Rich.  Eq. 
190. 

The  power  of  the  legislature,  with  the  consent  of  the  corporation,  to 
alter,  repeal  or  provide  for  a  surrender  of  the  charter  can  be  controlled  by 
contracts  made  with  the  corporation  only  to  the  extent  that  the  contracts 
and  legal  remedies  must  be  left  intact.  Houston  v.  Jefferson  College,  63 
Penn.  428. 

A  corporation,  by  the  very  terms  and  nature  of  its  political  existence,  is 
subject  to  dissolution  by  a  surrender  of  its  corporate  franchises,  or  by  a 
forfeiture  of  them  for  willful  misuser  or  non-user.  Every  creditor  must  be 
presumed  to  understand  the  nature  and  incidents  of  such  a  body  politic, 
and  to  contract  with  reference  to  them.  The  mere  existence  of  a  private 
contract  of  the  corporation  does  not  prevent  a  surrender  of  its  charter,  or 
force  upon  it  a  perpetuity  of  existence.  Mumma  v.  Potomac  Co.  8  Pet.  281. 

The  dissolution  of  a  corporation  by  a  surrender  of  its  charter  does  not 
impair  the  obligation  of  its  contracts,  for  the  creditors  may  enforce  their 
claims  against  any  property  belonging  to  the  corporation  which  has  not 


X 


1 88  CONSTITUTION    OF    THE    UNITED    STATES. 

passed  into  the  hands  of  bona  fide  purchasers,  but  is  still  held  in  trust  for 
the  corporation,  or  the  stockholders  thereof,  at  the  time  of  its  dissolution, 
Mumma  v.  Potomac  Co.  8  Pet.  281. 

If  the  incorporators  have  failed  to  comply  with  the  requirements  of  law, 
so  as  to  be  legally  incorporated,  the  legislature  may  pass  an  act  curing  the 
defects  and  giving  to  the  corporation  a  right  to  sue  upon  contracts  already 
made  in  its  name.  Syracuse  Bank  v.  Davis,  16  Barb.  188. 

Re§erved  Power  to  Alter. 

r  If  the  power  is  reserved  in  the  charter,  the  legislature  may  repeal,  alter 
'or  modify  the  charter.  Allen  v.  McKeen,  i  Sum.  276  ;  Crease  v.  Babcock,. 
40  Mass.  334;  McLaren  77.  Pennington,  i  Paige,  102;  Monongahela  Nav. 
Co  77.  Coon,  6  Penn.  379 ;  S.  C.  6  W.  &  S.  101  ;  Ferguson  77.  Miners'  & 
Manuf.  Bank,  3  Sneed,  609 ;  Stephen  v.  Smith,  29  Vt.  160;  Del.  R.  R.  Co. 
77.  Thorp,  5  Hairing.  454  ;  Perrin  77.  Oliver,  I  Minn.  202 ;  Stephens  77, 
Powell,  i  Oregon,  283. 

If  the  legislature  has  the  right  to  make  grants,  it  of  necessity  must  pre^ 
scribe  the  terms  upon  which  they  shall  be  made.  If  it  may  limit  the  dura- 
tion, it  may  also  impose  other  restrictions.  It  may  determine  how  much 
or  how  little,  how  large  or  how  small,  a  franchise  it  will  grant.  It  may 
grant  absolutely,  or  on  condition ;  so  it  may  grant  during  pleasure,  or  until 
a  certain  event  happens.  If  a  grant  is  accepted  on  the  terms  prescribed, 
it  becomes  a  compact,  and  the  grantee  can  have  no  reason  to  complain  of 
the  execution  of  his  own  contract.  Crease  77.  Babcock,  40  Mass.  334  ; 
Iron  City  Bank  77.  Pittsburgh,  37  Penn.  340. 

The  reservation  of  a  right  to  repeal  the  charter  is  not  a  condition  repug- 
nant to  the  grant ;  it  is  only  a  limitation  of  the  grant.  Even  in  a  common- 
law  conveyance  a  power  of  revocation  reserved  to  the  grantor  is  valid, 
McLaren  77.  Pennington,  i  Paige,  102  ;  Crease  77.  Babcock,  40  Mass.  334. 

If  a  general  statute  provides  that  all  charters  thereafter  granted  shall  be 
subject  to  alteration,  suspension  or  repeal  at  the  discretion  of  the  legisla- 
ture, a  charter  subsequently  granted  is  subject  to  the  power.  Miller  77, 
State,  1 5  Wall.  478 ;  Sherman  v.  Smith,  i  Black,  587 ;  Fort  Plain  Bridge 
Co.  77.  Smith,  30  N.  Y.  44  ;  Suydam  77.  Moore,  8  Barb.  358 ;  White  v.  Rail- 
road Co.  14  Barb.  559;  Griffin  ?7.  Kentucky  Ins.  Co.  3  Bush,  592;  State  77, 
Person,  32  N.  J.  134;  Hyatt  i>.  McMahon,  25  Barb.  457;  Iron  City  Bank  77. 
Pittsburgh,  37  Penh.  340;  Central  R.  &  B.  Co.  v.  State,  54Geo.  501 ;  State 
77.  Commissioners,  37  N.  J.  228. 

Whenever  the  power  to  repeal,  alter  or  amend  an^act  of  incorporation 
has  been  reserved  in  the  State  Constitution,  or  in  general  laws  on  the  sub- 
ject, or  in  the  special  act  of  incorporation,  its  exercise  does  not  impair  the 
contract  of  which  it  forms  a  constituent  part.  Comm.  TJ.  Fayette  County 


RESERVED    POWER    TO    ALTER.  189 

R.  R.  Co.  55  Penn.  452;  Pennsylvania  College  Cases,  13  Wall.  190;  Mil- 
ler v.  State,  1 5  Wall.  478. 

If  the  power  to  amend,  alter  or  repeal  is  not  reserved  in  the  Constitu- 
tion, it  is  a  question  in  every  case  whether  the  legislature  intended  that 
the  right  to  change  or  repeal  should  inhere  in  the  charter,  or  whether  the 
charter  was  perfect  and  not  within  the  power  of  the  legislature  to  impair 
its  obligation.  State  v.  Yard,  10  C.  L.  N.  90. 

The  reservation  of  the  right  to  repeal  or  amend  should  not  be  extended 
beyond  the  terms  in  which  it  is  expressed,  and  all  the  force  which  properly 
belongs  to  it  is  given  when  reservation  is  extended  as  far  as  the  language 
justifies,  and  it  should  be  extended  no  farther.  State  v.  Yard,  10  C.  L.  N.  90. 

A  public  statute  which  provides  the  manner  in  which  a  charter  may  be 
amended,  is  not  a  contract.  State  v.  New  Haven  £  N.  R.  R.  Co.  43  Conn. 
35i. 

The  charter  of  a  corporation  may  be  made  liable  to  repeal  by  an  amend- 
ment accepted  by  the  corporation,  which  reserves  the  power,  notwithstand- 
ing the  charter  was  before  irrepealable.  Monongahela  Nav.  Co.  V.  Coon,  6 
Penn.  379;  S.  C.  6  W.  &  S.  101 ;  Mobile  R.  R.  Co.  v.  State,  29  Ala.  573. 

If  the  right  to  repeal  is  reserved  by  one  State  Constitution,  it  can  not 
be  affected  by  the  subsequent  adoption  of  another  Constitution.  State  v. 
Northern  Central  R.  R.  Co.  44  Md.  131. 

A  power  to  alter  is  not  ordinarily  to  be  intended  as  a  power  to  repeal 
or  a  power  to  destroy.  Hartford  Bridge  Co.  v.  East  Hartford,  16  Conn.  149. 

If  the  power  to  repeal  depends  on  the  abuse  or  misuse  of  the  privileges 
conferred  by  the  charter,  it  is  not  necessary  that  such  abuse  or  misuse 
should  be  judicially  ascertained.  Crease  v.  Babcock,  40  Mass.  334  ;  Mi- 
ners' Bankz/.  U.  S.  I  Iowa,  553;  Erie  &  N.  E.  R.  R.  Co.  v.  Casey,  26 
Penn.  287 ;  S.  C.  I  Grant,  274 ;  contra,  Mayor  v.  Pitts,  &  C.  R.  R.  Co.  I 
Abb.  C.  C.  9 ;  Flint  &  F.  P.  Co.  v.  Woodhull,  25  Mich.  99. 

Where  the  power  to  alter  is  reserved,  the  legislature  may  modify  the 
charter  by  a  general  statute.  State  v.  Commissioners,  37  N.  J.  228 ;  Ban- 
gor  R.  R.  Co.  v.  Smith,  47  Me.  34;  States.  Commissioners,  38  N.  J.  472. 

The  statute  may  be  passed  in  accordance  with  the  forms  prescribed  by 
the  State  constitution  in  force  at  the  time  when  the  alteration  is  made,  al- 
though those  forms  are  not  the  same  as  were  prescribed  when  the  charter 
was  granted.  The  sovereign  people  having  reserved  the  power  to  alter, 
may,  from  time  to  time,  designate  the  agents  or  organs  by  which,  and  pre- 
scribe the  manner  in  which,  the  power  shall  be  exercised.  In  re  Reci- 
procity Bank,  29  Barb.  369 ;  S.  C.  22  N.  Y.  9;  17  How.  Pr.  323. 

The  alteration  may  be  made  by  a  change  in  the  State  constitution.  In 
re  Oliver  Lee  &  Co.'s  Bank,  21  N.  Y.  9. 


190  CONSTITUTION    OF    THE    UNITED    STATES. 

i  • 

An  act  of  incorporation  may  be  repealed  by  implication,  for  there  is  no 
difference  in  the  legislative  proceeding  by  which  an  act  of  incorporation  is 
repealed,  and  that  by  which  any  other  act  is  repealed.  Union  Railroad  Co. 
v.  East  Tenn.  R.'R.  Co.  14  Geo.  327. 

A  power  to  alter  or  modify  a  charter  is  not  exhausted  by  one  alter- 
ation, but  is  a  continuous  and  perpetual  power.  Proprietors  V.  Haskell^ 
7  Me.  474 ;  State  v.  Commissioners,  37  N.  J.  228  ;  People  v.  Hills,  46  Barb. 
340- 

Where  the  power  is  reserved  to  repeal,  alter  or  amend  a  charter,  the 
legislature  may  repeal  the  charter,  but  it  can  not  compel  the  corporation  to 
accept  an  amendment,  and  an  amendment  is  not  binding  without  ac- 
ceptance. Yeaton  v.  Bank,  21  Gratt.  593;  Sage  v.  Dillard,  15  B.  Mon. 
340. 

r 

An  alteration  is  binding  upon  the  corporation,  whether  it  assents  or 
not.  Att.  Gen.  v.  Railroad  Companies,  35  Wis.  425  ;  Mayor  v.  N.  &  W. 
R.  R.  Co.  109  Mass.  103  ;  Hyatt  v.  Whipple,  37  Barb.  595  ;  Hyatt  2/.  Es- 
mond, 37  Barb.  60 1. 

If  an  amendment  goes  farther  than  matters  of  policy,  and  those  duties 
that  immediately  affect  the  public,  the  corporation  may  decline  to  accept 
an  amendment,  although  the  power  to  alter  is  reserved  in  the  charter. 
Troy  &  Rutland  R.  R.  Co.  v.  Kerr,  17  Barb.  581. 

No  formal  vote  to  accept  an  amendment  of  the  charter  is  necessary. 
The  acceptance  may  be  implied  from  proof  of  any  regular  corporate  act. 
Bangor  R.  R.  Co.  v.  Smith,  47  Me.  34 ;  City  of  Roxbury  v.  Railroad  Co. 
60  Mass.  424. 

Where  the  power  is  reserved  to  alter,  repeal  or  amend  the  charter,  the 
legislature  may,  if  the  interest  and  rights  of  creditors  demand  it,  take 
away  the  custody  of  the  assets  of  the  corporation  from  the  directors,  and 
intrust  the  custody  to  a  State  officer,  pending  an  investigation  into  the 
company's  solvency.  Lothrop  v.  Stedman,  42  Conn.  583  ;  S.  C.  15  A.  L. 
Reg.  346. 

Where  the  power  is  reserved  to  alter  or  amend  the  charter  of  a  street 
railway  corporation  the  legislature  may  authorize  another  company  to  lay 
a  similar  track  through  the  same  street,  or  to  use  the  track  of  the  first  cor- 
poration, making  compensation  for  the  use  and  wear  of  the  track,  but 
without  compensation  for  the  diminution  of  its  profits  or  the  value  of  its 
franchise.  Metropolitan  R.  R.  Co.  v.  Highland  Railway,  118  Mass.  290. 

If  the  power  to  repeal  or  alter  is  reserved  in  the  charter,  a  statute  au- 
thorizing a  receiver  to  make  assessments  on  premium  notes  of  an  insur- 
ance company,  instead  of  the  directors,  is  valid,  although  it  applies  to 
notes  issued  before  its  passage.  Hyatt  v.  McMahon,  25  Barb.  457. 


RESERVED    POWER    TO    ALTER.  19! 

The  reservation  of  the  power  to  repeal,  alter  or  modify  a  charter,  does 
not  authorize  the  legislature  to  pass  an  act  compelling  the  corporation  to- 
construct  a  highway  across  its  property  at  its  own  expense.  Miller  V.  Rail- 
road Co.  21  Barb.  513. 

Where  a  corporation  has  been  exempted  from  the  obligation  to  maintain 
a  suitable  and  sufficient  fishway,  in  consideration  of  its  indemnifying  the  ri- 
parian owners  whose  rights  are  injured  by  its  dam,  and  has  expended  con- 
siderable sums  of  money  in  pursuance  of  this  requirement,  it  is  not  competent 
for  the  legislature,  under  its  power  to  alter  or  amend  the  charter,  to  pass  a 
law  requiring  the  corporation  to  maintain  a  fishway.  Comm.  V.  Essex 
Co.  79  Mass.  239. 

Where  there  is  a  provision  that  the  alteration  shall  work  no  injustice  to 
the  corporators,  it  is  for  the  courts,  and  not  for  the  legislature  to  decide,, 
whether  the  modification  works  injustice  to  them.  Iron  City  Bank  v. 
Pittsburgh,  37  Penn.  340. 

Where  the  power  to  alter  is  reserved  in  the  charter,  the  legislature  may 
modify  a  provision  which  requires  the  consent  of  a  majority  of  the  pew 
holders  to  the  levying  of  a  pew  tax.  Bailey  v.  Trustees,  6  R.  I.  491. 

Where  the  power  to  alter  or  repeal  is  reserved,  the  legislature  may  im- 
pose a  tax  different  from  that  stipulated  for  in  the  original  charter.  Iron 
City  Bank  v.  Pittsburgh,  37  Penn.  340. 

Where  the  power  is  reserved  to  alter  the  charter,  the  legislature  may 
require  a  railroad  corporation  to  raise  or  lower  the  highways  which  its 
road  crosses,  as  the  security  of  the  public  requires.  City  of  Roxbury  v. 
Railroad  Co.  6  Cush.  424. 

Where  the  power  to  alter  is  reserved,  a  highway  may  be  laid  across  a 
railroad  track,  and  the  corporation  may  be  required  to  make  the  necessary 
excavations  and  embankments.  Albany  R.  R.  Co.  v.  Brownell,  24  N.  Y.. 
345  ;  Fitchburg  R.  R.  Co.  «j.  Grand  Junction  R.  R.  Co.  86  Mass.  198. 

Where  the  power  is  reserved  to  alter  the  charter,  the  legislature  may 
impose  a  burden  clearly  connected  with  the  grant,  and  necessary  to  pro- 
tect the  public  from  the  injurious  consequences  resulting  from  the  exercise 
of  the  power  conferred  by  the  charter.  English  v.  New  Haven  Co.  32 
Conn.  240. 

Where  the  power  is  reserved  to  alter  the  charter,  the  legislature  may 
compel  the  corporation  to  widen  a  bridge  over  an  excavation  made  by  it. 
English  v.  New  Haven  Co.  32  Conn.  240. 

Where  the  power  is  reserved  to  alter  the  charter,  the  legislature  may 
increase  the  number  of  directors  which  a  municipal  corporation  which  is  a 


CONSTITUTION    OF    THE    UNITED    STATES. 


stockholder,  is  entitled  to  elect.     People  v.  Hills,  46  Barb.  340;  Miller  v. 
State,  15  Wall.  478. 

Where  the  right  is  reserved  to  alter  the  charter,  a  State  may  prohibit 
an  insolvent  corporation  from  giving  preferences.  Robinson  V.  Gardiner, 
1  8  Gratt.  509.  , 

Where  the  power  is  reserved  to  alter  or  amend  the  charter,  a  State  may 
impose  a  tax  on  the  stock,  although  there  is  a  clause  in  the  charter  that 
such  tax  shall  not  be  imposed  for  a  certain  period.  Comm.  -z/.  Fayette 
County  R.  R.  Co.  55  Penn.  452. 

A  provision  that  the  charter  shall  not  be  altered  except  by  an  act  of  the 
legislature  is  a  sufficient  reservation  of  the  power  to  alter.  Houston  u. 
Jefferson  College,  63  Penn.  428  ;  Comm.  v.  Bonsall,  3  Whart.  559;  Penn- 
sylvania College  Cases,  13  Wall.  190. 

A  legislature  can  not  appoint  additional  trustees  for  a  corporation,  al- 
though it  has  reserved  the  right  to  repeal,  alter,  or  amend  the  charter. 
Sage  v.  Dillard,  1  5  B.  Mon.  340. 

Where  the  power  is  reserved  to  repeal,  alter,  or  amend  the  charter,  a 
corporation  authorized  to  construct  a  dam  across  a  river  may  be  required 
to  construct  a  suitable  fishway  at  its  own  expense.  Commissioners  v.  Hoi- 
yoke  W.  P.  Co.  104  Mass.  446  \  Holyoke  v.  Lyman,  15  Wall.  500. 

Where  the  power  is  reserved  to  repeal,  alter,  or  amend  the  charter,  the 
legislature  may  require  a  railroad  corporation  to  construct  cattle  guards. 
Bulkley  v.  N.  Y.  &  N.  H.  R.  R.  Co.  27  Conn.  479. 

Where  the  power  is  reserved  to  alter,  amend,  or  repeal  the  charter,  the 
legislature  may  require  a  railroad  corporation  to  fence  its  road.  Staats  v. 
Hudson  River  R.  R.  Co.  3  Keyes,  196. 

Where  the  power  is  reserved  to  alter,  amend,  or  repeal  a  charter,  the 
corporation  may  be  required  to  pay  the  excess  of  the  dividend  over  six  per 
cent,  per  annum  to  a  hospital,  instead  of  one-third  of  the  net  profits.  Mass. 
Gen.  Hospital  v.  State  Mutual  Life  Insurance  Co.  70  Mass.  227. 

The  reserved  power  to  repeal,  alter,  or  amend  the  charter  may  be  exer- 
cised to  almost  any  extent  to  carry  into  effect  the  original  .purposes  of  the 
grant,  or  to  secure  the  due  administration  of  its  affairs,  so  as  to  protect  the 
rights  of  the  stockholders  and  of  creditors,  and  for  the  proper  disposition 
of  the  assets.  Miller  v.  State,  1  5  Wall.  478  ;  Holyoke  v.  Lyman,  1  5  Wall. 
500. 

Where  the  power  is  reserved  to  repeal,  alter,  or  amend  the  charter,  the 
legislature  may  repeal  a  clause  in  the  charter  exempting  the  corporation 
from  taxation.  State  v.  Miller,  30  N.  J.  368;  S.  C.  31  N.  J.  521  ;  State  v. 
Mayor,  31  N.  J.  575;  Union  Improvement  Co.  v.  Comm.  69  Penn.  140; 


RESERVED    POWER    TO    ALTER.  193 

'Comm.  v.  Fayette  County  R.  R.  Co.  55  Perm.  452  ;  City  v.  Metropolitan 
Bank,  27  La.  Ann.  648;  Iron  City  Bank  v.  Pittsburgh,  37  Penn.  340;  C.  R. 
.&  B.  Co.  v.  State,  54  Geo.  401 ;  A.  &  G.  R.  R.  Co.  v.  State,  55  Geo.  312; 
Tomlinson  v.  Jessup,  15  Wall.  454;  West.  Wis.  R.  R.  Co.  v.  Supervisors, 
35  Wis.  257  ;  s.  c.  93  U.  S  595  ;  Hewitt  v.  N.  Y.  &  O.  M.  R.  R.  Co.  12 
Blatch.  452. 

Where  the  power  is  reserved  to  repeal,  alter,  or  amend  the  charter,  a 
railroad  corporation  may  be  required  to  erect  a  station-house  at  a  certain 
place  on  its  road,  and  cause  trains  to  stop  there.  Comm.  v.  Eastern  R.  R. 
Co.  103  Mass.  254. 

Where  the  power  is  reserved  to  repeal,  amend,  or  alter  the  charter,  a 
State  may  require  several  railroads  to  unite  in  a  station  in  a  city.  Mayor  v. 
N.  &  W.  R.  R.  Co.  109  Mass.  103. 

Where  the  power  is  reserved  to  repeal,  amend,  or  alter  the  charter,  a 
State  may  diminish  the  right  to  a  ferry  franchise  from  two  miles  to  a  quar- 
'  ter  of  a  mile.     Perrin  v.  Oliver,  I  Minn.  202. 

Where  the  power  is  reserved  to  repeal  the  charter,  the  State  may  regu- 
late tolls  or  rates  for  transportation  of  persons  or  property.  Hinckley  v. 
C.  N.  &  St.  P.  R.  R.  Co.  38  Wis.  194;  State  v.  Stone,  37  Wis.  204;  Pick 
v.  C.  &  N.  W.  R.  R.  Co.  94  U.  S.  164;  S.  C.  6  Biss.  177  ;  Shields  v.  State,  26 
Ohio  St.  86;  Att.  Gen.  v.  Railroad  Company,  35  Wis.  425;  Anon.  6  C.  L. 
N.  333 ;  M.  W.  &  M.  Plank  Road  Co.  v.  Reynolds,  3  Wis.  287  ;  Parker  v. 
Metropolitan  R.  R.  Co.  109  Mass.  506. 

If  the  power  to  alter,  limit,  annul,  or  restrain  any  of  the  powers  vested 
in  the  corporation  by  the  charter,  is  to  be  used  as  shall  be  judged  necessary 
to  promote  the  best  interests  of  the  corporation,  the  legislature  can  not  ex- 
tinguish its  corporate  existence.  The  legislature  is  constituted  sole  judge 
of  what  is  the  best  interest  of  the  corporation,  but  still  it  can  not  do  any- 
thing pointedly  destructive  of  that  interest.  Allen  v.  McKeen,  I  Sum. 
276. 

If  the  power  is  merely  to  alter,  limit,  annul,  or  restrain  the  powers 
vested  in  the  corporation  by  the  charter,  the  legislature  can  not  intermeddle 
with  its  property.  Allen  v.  McKeen,  I  Sum.  276. 

Where  the  power  to  repeal  or  alter  is  reserved  in  the  State  Constitution, 
the  right  is  not  affected  by  the  grant  of  authority  by  the  legislature  to  con- 
solidate with  a  corporation  of  another  State.  The  corporation  is  still  sub- 
ject to  the  Constitution,  and  there  is  no  authority  anywhere  to  remove  it 
beyond  the  reach  of  such  authority.  Anon.  6  C.  L.  N.  333. 

The  legislature  can  not  touch  the  vested  rights,  privileges,  or  franchises 
of  a  corporation,  except  so  far  as  the  power  is  reserved  by  the  charter. 
Allen  v.  McKeen,  i  Sum.  276. 
13 


IQ4  CONSTITUTION    OF    THE    UNITED    STATES. 

The  reservation  of  the  power  to  repeal,  alter,  or  modify  the  charter 
does  not  authorize  the  legislature  to  take  the  property  of  the  corporation 
for  public  use  without  compensation.  Miller  v.  Railroad  Co.  21  Barb. 
SIS- 

Under  the  reserved  power  to  alter  and  repeal,  the  legislature  has  no 
right  to  change  the  fundamental  character  of  the  corporation,  and  convert 
it  into  a  different  legal  being.  Buffalo  &  N.  Y.  City  R.  R.  Co.  v.  Dudley, 
14  N.  Y.  336. 

Under  the  reserved  power  to  amend,  the  legislature  can  not  compel  the 
corporation  to  change  the  entire  character  of  its  business.  An  amendment 
must  not  only  be  granted,  but  accepted.  The  corporators  do  not  agree  to 
use  the  charter  after  an  amendment,  no  matter  how  injurious  to  their  in- 
terests. Troy  &  Rutland  R.  R.  Co.  v.  Kerr,  17  Barb.  581 ;  White. v.  Rail- 
road Co.  14  Barb.  559. 

Although  the  charter  contains  a  reservation  of  the  right  to  alter  or 
amend  it,  yet  no  amendment  or  alteration  can  take  away  the  property  or 
rights  which  have  become  vested  under  a  legitimate  exercise  of  the  powers 
granted  by  the  charter.  Comm.  v.  Essex  Co.  79  Mass.  239. 

Where  there  is  a  reservation  of  the  right  to  alter  or  amend,  the  legisla- 
ture may  make  the  stockholder  personally  liable  for  the  debts  of  the  cor- 
poration subsequently  contracted.  Sherman  v.  Smith,  I  Black,  587  ;  Bailey 
v.  Hollister,  26  N.  Y.  112;  In  re  Empire  City  Bank,  18  N.  Y.  199;  In  re 
Reciprocity  Bank,  29  Barb.  369;  S.  C.  22  N.  Y.  9;  17  How.  Pr.  323;  In  re 
Oliver  Lee  &  Co.'s  Bank,  21  N.  Y.  9;  Anderson  v.  Comm.  18  Gratt.  295. 

Where  the  power  is  reserved  to  repeal,  amend  or  alter  the  charter,  the 
legislature  may  make  the  stockholders  liable  for  all  the  debts  of  the  cor- 
poration until  the  whole  amount  of  the  capital  shall  have  been  paid  in,  and 
a  certificate  thereof  duly  recorded.  Butler  v.  Walker,  8  C.  L.  N.  92. 

The  power  to  repeal  or  alter  the  charter  becomes  by  operation  of  law  a 
part  of  every  contract  or  mortgage  made  by  the  corporation.  The  share- 
holders and  bondholders  take  their  stock  or  their  securities  subject  to  this 
paramount  condition,  of  which  they  in  law  have  notice.  Anon.  6  C.  L.  N, 
333- 

If  the  right  to  repeal  or  amend  is  reserved  in  the  charter,  a  creditor 
of  the  corporation  can  not  object  to  the  repeal,  for  that  is  a  contingency 
which  he  assumed  when  he  made  the  contract.  Read  v.  Frankfort  Bank, 
23  Me.  318;  West.  Wis.  R.  R.  Co.  v.  Supervisors,  93  U.  S.  595  ;  S.  C.  35 
Wis.  257. 

The  power  to  destroy  a  contract  made  with  a  corporation  by  repealing- 
its  charter,  does  not  give  the  legislature  the  power  to  impair  or  alter  or 
destroy  the  contract  in  any  manner  the  legislature  may  think  fit,  without 
repealing  the  charter.  Curran  v.  State,  15  How.  304;  s.  C.  12  Ark.  321. 


EFFECT    OF    AMENDMENT    ON    STOCKHOLDERS.       195 

The  power  to  repeal  the  charter  does  not  confer  the  power  to  destroy 
the  executory  contracts  of  the  corporation,  and  withdraw  its  property  from 
the  just  claims  of  its  creditors.  Curran  v.  State,  15  How.  304;  s.  C.  12 

Ark.  321. 

* 

The  power  to  make  by-laws  for  the  government  of  the  corporation  does 
not  give  the  corporation  the  right  to  enact  a  by-law  which  will  affect  the 
right  to  a  scholarship  previously  taken,  by  imposing  terms  and  conditions 
not  embraced  in  the  contract  itself.  Illinois  College  v.  Cooper,  25  111.  148. 

Contracts  made  between  individuals  and  the  corporation  do  not  vary  or 
in  any  manner  change  or  modify  the  relation  between  the  State  and  the 
corporation  in  respect  to  the  right  of  the  State  to  alter,  amend  or  modify. 
Pennsylvania  College  Cases,  13  Wall.  190;  Pick  v.  C.  &  N.  W.  R.  R.  Co. 
6  Biss.  177. 

Where  a  note  is  made  payable  at  the  bank,  the  legislature  can  not  make 
a  law  allowing  it  to  be  paid  at  a  branch  bank,  although  the  power  was  re- 
served to  repeal,  amend  or  alter  the  charter.  Bank  z/.  McVeigh,  20  Gratt. 
457- 

The  legislature  can  not  alter  contracts  made  under  a  charter  writh  the 
corporation,  although  the  power  was  reserved  to  repeal,  alter  or  amend  the 
charter.  Bank  -z/.  McVeigh,  20  Gratt.  457. 

Effect  of  Amendment  on  Stockholders 

By  acquiring  an  interest  in  a  corporation,  a  stockholder  enters  into  an 
obligation  with  it  in  the  nature  of  a  special  contract,  the  terms  of  which  are 
limited  by  the  specific  provisions,  rights  and  liabilities  detailed  in  the  act  of 
incorporation.  To  make  a  valid  change  in  this  contract,  the  assent  of  both 
parties  is  indispensable.  The  corporation  on  one  part  can  assent  by  a  vote 
of  the  majority ;  the  individual,  on  the  other  part,  by  his  own  personal  act. 
Union  Locks  &  Canals  v.  Towne,  I  N.  H.  44 ;  Hartford  &  New  Haven 
R.  R.  Co  v.  Crosswell,  5  Hill,  383. 

The  charter  constitutes  the  fundamental  articles  of  the  association.  It 
defines  the  rights  and  powers  of  the  corporation,  determines  its  objects  and 
fixes  the  individual  contract  of  the  members  with  the  corporation.  These 
fundamental  articles  can  not  be  altered  by  a  vote  of  the  majority  against 
the  consent  of  the  minority,  unless  there  is  an  express  or  implied  provision 
in  the  charter  itself  that  they  may  do  it.  The  legislature  has  no  greater 
power  over  the  corporators  than  over  the  corporation.  The  contract  sub- 
sisting between  the  members  of  a  corporate  body  and  the  corporation  is 
equally  within  the  protection  of  the  Constitution.  Hence  the  legislature 
can  not  authorize  an  amendment  of  the  charter  against  the  wishes  of  any 
corporator,  unless  that  power  is  expressly  reserved.  New  Orleans,  J.  & 
G.  N.  R.  R.  Co.  77.  Harris,  27  Miss.  517;  Mobile  R.  R.  Co.  v.  State,  29 


196  CONSTITUTION    OF    THE    UNITED    STATES. 

Ala.  573 ;  McCray  v,   Junction  Railroad  Co.  9  Ind.  358 ;  Stevens  v.  R.  & 
B.  Railroad  Co.  29  Vt.  545. 

Alterations  may  be  made  in  the  charter  without  changing  the  contract 
so  essentially  as  to  absolve  the  subscriber.  Such  is  the  case  in  respect  to 
mere  formal  amendments,  or  those  which  are  clearly  enough  beneficial,  or 
at  least  not  prejudicial,  to  his  interests.  A  modification  of  the  grant  may 
frequently  be  advisable,  if  not  necessary,  in  order  to  facilitate  the  execution 
©f  the  very  object  for  which  the  corporation  was  originally  established. 
Hartford  &  N.  H.  Railroad  Co.  v.  Croswell,  5  Hill,  383  ;  Irvin  v.  Turnpike 
Co.  2  Penn.  466 ;  Gray  v.  Monongahela  Nav.  Co.  2  W.  &  S.  1 56 ;  Clark 
v.  Monongahela  Nav.  Co.  10  Watts,  364  ;  Banet  v.  Alton  &  Sangamon 
Railroad  Co.  13  111.  504;  Penn.  &  Ohio  Canal  Co.  -z/.Webb,  9  Ohio,  136 ;  Troy 
&  Rutland  Railroad  Co.  v.  Kerr,  17  Barb.  581  ;  Woodfork  v.  Union  Bank, 
3  Cold.  488. 

Each  subscriber,  when  he  enters  an  association,  is  presumed  to  consent 
to  whatever  probably  will  and  is  intended  to  make  the  undertaking  a  suc- 
cess, and  the  investment  profitable.  Sprague  z/.  111.  Railroad  Co.  19  111. 
174  ;  111.  Railroad  Co.  v.  Zimmer,  20  111.  654. 

Such  amendments  of  the  charter  as  may  be  considered  useful  to  the 
public  and  beneficial  to  th'e  corporation,  and  which  will  not  divert  its  prop- 
erty to  new  and  different  purposes,  may  be  made  without  absolving  the 
subscribers  from  their  engagements.  Banet  v.  Alton  &  Sangamon  Railroad 
Co.  13  111.  504  ;  Clark  v.  Monongahela  Nav.  Co.  10  Watts,  364. 

No  general  rule  can  be  laid  down  by  which  to  determine  whether  a 
change  is  material  or  not.  Each  case  must  depend  on  its  own  circumstan- 
ces, and  be  disposed  of  with  due  regard  to  the  inviolability  belonging  to  all 
private  contracts.  Hartford  &  New  Haven  Railroad  Co.  v,  Crosswell,  5 
Hill,  383. 

Any  corporation  has  a  right  to  accept  any  amendment  to  its  charter 
which  it  believes  promotive  of  the  objects  and  interests  of  the  company.  Of 
this  the  corporation  is  necessarily  the  judge,  and  so  long  as  those  who  rep- 
resent and  act  for  the  corporation  act  with  an  honest  purpose  and  a  bona 
fide  intent,  their  action  must  be  sustained  as  obligatory  upon  the  corpora- 
tion, the  same  as  in  the  exercise  of  any  other  discretionary  power.  111. 
Railroad  Co.  v.  Zimmer,  20  111.  654. 

There  must  be  a  palpable  abuse  of  power  by  the  majority  or  governing 
authority,  to  the  prejudice  of  the  minority  or  dissenting  portion,  before  an 
amendment  can  be  held  illegal.  Sprague  v.  111.  Railroad  Co.  19  111.  174. 

Bad  faith  or  fraud  will  vitiate  an  amendment  of  a  charter.  Sprague  v. 
111.  Railroad  Co.  19  111.  174 ;  111.  Railroad  Co.  v.  Zimmer,  20  111.  654. 

A  grant  of  additional  privileges  to  a  corporation  is  not  an  invasion  of 


EFFECT    OF    AMENDMENT    ON    STOCKHOLDERS. 


the  contract  between  it  and  the  stockholders.     Gray  v.  Monongahela  Nav. 

Co.  2  W.  £  S.  156;  P.  &  O.  Railroad  Co.  v.  Elting,  17  111.  429. 

* 

An  amendment  increasing  the  number  of  directors,  and  allowing  a  vote 
for  each  share  of  stock,  is  immaterial.  Everhart  v.  Phila.  &  W.  C.  Rail- 
road Co.  28  Penn.  339. 

An  amendment  authorizing  the  corporation  to  take  subscriptions  and 
receive  payment  therefor,  upon  terms  different  from  those  upon  which  the 
original  subscriptions  were  taken,  will  not  release  a  subscriber.  111.  Rail- 
road Co.  v.  Zimmer,  20  111.  654. 

An  amendment  permitting  an  organization  of  the  corporation  upon  a 
less  subscription  than  was  originally  required,  does  not  release  a  subscriber. 
111.  Railroad  Co.  v.  Zimmer,  20  111.  654;  P.  &  O.  Railroad  Co.  v.  Elting, 
17  111.  429. 

A  statute  allowing  the  issue  of  preferred  stock,  with  the  consent  of  the 
majority  of  the  stockholders,  will  bind  the  minority.  City  v.  Cov.  &  Cin. 
Bridge  Co.  10  Bush,  69. 

An  amendment  changing  the  notice  of  a  call  for  an  instalment  from 
ninety  days  to  twenty  days  does  not  release  a  subscriber.  111.  Railroad  Co. 
v.  Zimmer,  20  111.  654  ;  111.  Railroad  Co.  v.  Beers,  27  111.  185. 

An  amendment  authorizing  a  call  upon  the  subscribers  in  a  particular 
locality,  and  devoting  the  funds  to  the  construction  of  the  road  in  their 
vicinage,  does  not  release  them.  111.  Railroad  Co.  v.  Zimmer,  20  111.  654. 

An  amendment  authorizing  the  issue  of  preferred  stock  and  bonds,  for 
the  purpose  of  accomplishing  the  objects  of  the  corporation,  does  not  re- 
lease a  subscriber.  Everhart  v.  Phila.  &  W.  C.  Railroad  Co.  28  Penn.  339. 

An  amendment  authorizing  a  corporation  to  borrow  money  and  mort- 
gage its  property  to  secure  the  loan  does  not  release  a  subscriber.  P.  & 
O.  Railroad  Co.  v.  Elting,  17  111.  429;  Joy?/.  Jackson  &  Mich.  Plank  Road, 
ii  Mich.  155. 

An  amendment  authorizing  a  corporation  to  purchase  stock  in  another 
corporation  does  not  release  a  subscriber.  Terre  Haute  &  Alton  Railroad 
Co.  v.  Earp,  21  111.  291. 

An  amendment  authorizing  a  railroad  corporation  to  construct  ferries 
across  a  river  does  not  release  a  subscriber.  P.  &  O.  Railroad  Co.  v.  Elt- 
ing, 17  111.  429. 

An  amendment  authorizing  a  corporation  to  increase  its  capital  stock 
does  not  release  a  subscriber.  P.  &  O.  Railroad  Co.  v.  Elting,  17  111.  429. 

An  amendment  authorizing  a  corporation  to  issue  new  stock  does  not 
release  a  subscriber.  Pacific  Railroad  v.  Hughes,  22  Mo.  291. 


190  CONSTITUTION    OF    THE    UNITED    STATES. 

Ilf  the  stock  is  forfeited  to  the  corporation  for  non-payment  of  assess- 
ments before  the  alteration,  the  alteration  constitutes  no  defense  to  an 
action  on  a  note  given  for  one  of  the  instalments.*  Mitchell  v.  Rome  Rail- 
road Co.  17  Geo.  574. 

An  amendment  confirming  an  organization  made  before  the  requisite 
amount  of  stock  had  been  subscribed,  is  valid,  and  binds  a  subscriber 
whose  subscription  had  been  previously  taken.  Rice  v.  Rock  Island  & 
Alton  Railroad  Co.  21  111.  93. 

A  change  in  the  route  of  a  railroad  or  turnpike,  which  is  a  change  from 
one  enterprise  to  another,  is  a  material  change.  Kenosha,  Rockford  & 
Rock  Island  Railroad  Co.  v.  Marsh,  17  Wis.  13;  Middlesex  Turnpike 
Corporation  v.  Locke,  8  Mass.  268 ;  Middlesex  Turnpike  Corporation  v. 
Swan,  10  Mass.  384. 

A  road  intended  to  secure  the  advantages  of  a  particular  line  of  travel 
and  transportation  can  not  be  so  changed  as  to  defeat  that  general  object. 
The  corporation  must  remain  substantially  the  same,  and  be  designed  to 
accomplish  the  same  general  purposes  and  subserve  the  same  general 
interests.  Banet  v.  Alton  &  Sangamon  Railroad  Co.  13  111.  504. 

An  amendment  authorizing  a  railroad  corporation  to  extend  the  line  of 
its  road  does  not  release  a  subscriber.  Rice  v.  Rock  Island  &  Alton 
Railroad  Co.  21  111.  93;  Del.  Railroad  Co.  v.  Tharp,  i  Houst.  149;  P.  &  O. 
Railroad  Co.  v.  Elting,  17  111.  429;  Terre  Haute  &  Alton  Railroad  Co.  v. 
Earp,  21  111.  291. 

An  immaterial  deviation  from  the  route  prescribed  in  the  charter  will 
not  release  a  subscriber.  Champion  v.  Memphis  &  Charleston  Railroad 
Co.  35  Miss.  692. 

An  amendment  authorizing  a  railroad  corporation  to  build  branch 
roads  does  not  release  a  subscriber.  Pacific  Railroad  v.  Hughes,  22  Mo. 
291  ;  Greenville  &  Col.  Railroad  Co.  v.  Coleman,  5  Rich';  118;  P)  &  O. 
Railroad  Co.  v.  Elting,  17  111.  429  ;  Peoria  &  Rock  Island  Railroad  Co.  v. 
Preston,  35  Iowa,  115. 

Whether  a  deviation  from  the  route  prescribed  in  the  charter  will  re- 
lease a  subscriber,  is  a  question  that  must  be  determined  according  to  the 
circumstances  of  each  particular  case.  Champion  v.  Memphis  &  Charles- 
ton Railroad  Co.  35  Miss.  692 ;  Witter  v.  M.  O.  &  R.  R.  Railroad  Co.  20 
Ark.  463. 

Where  the  primary  object  of  the  charter  was  to  develop  the  interests 
along  the  line  of  the  road,  a  change  of  intermediate  points  may  be  mate- 
rial. Witter  v.  M.  O.  &  R.  R.  Railroad  Co.  20  Ark.  463. 

A  material  deviation  from  the  route  prescribed  in  the  charter,  will  re- 


EFFECT    OF    AMENDMENT    ON    STOCKHOLDERS.       199 

-lease  a  subscriber.     Witter  v.  M.  O.   &  R.  R.  Railroad  Co.  20  Ark.  463; 
Winter  v.  Muscogee  Railroad  Co.  1 1  Geo.  438. 

It  is  involved  in  the  nature  of  a  subscription  to  the  stock  of  a  corpora- 
tion for  making  a  road  from  one  place  to  another,  that  the  termini  are  part 
of  the  contract,  and  an  amendment  excusing  the  corporation  from  one  ter- 
minus releases  the  subscriber.  Plank  Road  Co.  v.  Arndt,  31  Penn.  317; 
Winter  v.  Muscogee  Railroad  Co.  1 1  Geo.  438 ;  Marietta  &  Cin.  Railroad 
•Co.  ?/.  Elliott,  10  Ohio  St.  57;  Thompson  v.  Guion,  5  Jones  Eq.  113. 

An  amendment  which  makes  a  material  and  fundamental  alteration  in 
the  route  of  a  railroad  releases  a  subscriber.  Hester  ?/.  Memphis  & 
-Charleston  Railroad  Co.  32  Miss.  378. 

If  the  termini  of  the  road  remain  the  same,  a  change  from  an  interme- 
diate point  will  not  release  a  stockholder  from  his  subscription.  Banet  v. 
Alton  &  Sangamon  Railroad  Co.  ^3  111.  504;  Irvin  v.  Turnpike  Co.  2  Penn. 
466  ;  P.  £.O.  Railroad  Co.  v.  Elting,  17  111.  429. 

An  immaterial  change  in  a  terminative  point  of  a  road  does  not  release 
a  stockholder.  Irvin  v.  Turnpike  Co.  2  Penn.  466;  Penn.  &  Ohio  Canal 
Co.  v.  WTebb,  9  Ohio,  136;  Del.  Railroad  Co.  z/.  Tharp,  I  Houst.  149; 
Pacific  Railroad  v.  Hughes,  22  Mo.  291. 

The  straightening  of  the  line  of  a  road,  the  location  of  a  bridge  at  a 
different  place  on  a  stream,  or  a  deviation  in  the  route  from  an  interme- 
diate point,  will  not  have  the  effect  to  destroy  or  impair  the  contract  be- 
tween the  corporation  and  the  subscribers.  Banet  v.  Alton  &  Sangamon 
Railroad  Co.  13  111.  504. 

A  stockholder  has  no  reason  to  complain  of  any  line  of  transit  which 
starts  from  the  same  point  of  business,  accommodates  the  same  travel  and 
transportation,  and  substantially  subserves  the  same  general  interests. 
Penn.  &  Ohio  Canal  Co.  v.  Webb,  9  Ohio,  136. 

If  an  amendment  materially  altering  the  terms  of  the  charter  is  made 
without  the  consent  of  a  stockholder,  he  is  released  from  liability  on  his 
subscription.  Union  Locks  &  Canals  v.  Towne,  I  N.  H.  44;  Middlesex 
Turnpike  Corporation  z/.  Locke,  8  Mass.  268 ;  Hartford  &  New  Haven 
Railroad  Co.  v.  Crosswell,  5  Hill,  383 ;  Turnpike  Co.  v.  Phillips,  2  Penn. 
184;  Pitts.  &  S.  Railroad  Co.  v.  Ga.zza.rn,  32  Penn.  340;  Middlesex  Turn- 
pike Corporation  v.  Swan,  10  Mass.  384. 

The  original  purpose  or  object  of  the  corporation  can  not  be  entirely 
changed  or  abandoned,  and  a  new  one  undertaken,  without  releasing  the 
subscribers.  Sprague  v.  Illinois  Railroad  Co.  19  111.  174;  Woodfork  u. 
Union  Bank,  3  Cold.  488. 

The  rule  must  be  general  in  its  operation.      What  will  discharge  one 


2OO  CONSTITUTION    OF    THE    UNITED    STATES. 

stockholder  from  the  payment  of  his  subscription,  must  be  held  to  have  the 
same  effect  as  to  others.  The  matter  of  injury  to  one,  or  of  benefit  to  the 
others,  can  not  affect  their  respective  liabilities.  Banet  v.  Alton  &  Sanga- 
mon  Railroad  Co.  13  111.  504;  Irvin  v.  Turnpike  Co.  2  Penn.  466 ;  Fry  v. 
L.  &  B.  S.  Railroad  Co.  2  Mete.  (Ky.)  314;  Sprague  v.  Illinois  Railroad 
Co.  19  III.  174. 

The  material  change  may  consist  either  in  advancing  objects  essentially 
different,  or  the  same  objects  in  methods  essentially  different  from  those 
originally  contemplated.  Union  Locks  &  Canals  v.  Towne,  i  N.  H.  44. 

An  act  transferring  the  franchise  and  subscriptions  of  one  corporation 
to  another  releases  the  subscriber  to  the  stock  of  the  former.  New  Or- 
leans J.  &  G.  N.  Railroad  Co.  27  Miss.  517. 

An  act  dividing  a  corporation  into  two  or  more  corporations,   and  ap- 
portioning the  subscriptions  between  them,  does  not  bind  a  stockholder. 
Turnpike  Company  v.  Phillips,  2  Penn.  184;   Supervisors  v.  Miss.  &  W.. 
Railroad  Co.  21  111.  338. 

Where  the  power  to  consolidate  existed  at  the  time  of  the  subscription, 
a  subsequent  consolidation  does  not  release  the  subscriber,  for  his  contract 
must  be  presumed  to  have  been  made  with  reference  to  it.  Sparrow  v. 
Evansville  &  Crawfordsville  Railroad  Co.  7  Ind.  369;  Bish  v.  Johnson,  21 
Ind.  299. 

An  amendment  authorizing  a  railroad  corporation,  to  consolidate  or 
make  connections  with  any  other  railroad  corporation  on  the  line  of  its 
route  will  not  release  a  subscriber.  Sprague  v.  Illinois  Railroad  Co.  19 
111.  174 ;  Illinois  Railroad  Co.  v.  Zimmer,  20  I1L  654. 

A  consolidation  of  two  corporations  into  one  releases  a  stockholder  from 
his  subscription.  McCray  v.  Junction  Railroad  Co.  9  Ind.  358;  Lanman 
v.  Lebanon  Valley  Railroad  Co.  30  Penn.  42. 

A  corporation  can  not  consolidate  with  another  corporation  without  the 
consent  of  all  the  stockholders.  Mowrey  v.  Ind.  &  Cin.  Railroad  Co.  4 
Biss.  78. 

A  change  in  the  charter  of  a  railroad  corporation,  authorizing  it  to  own 
and  run  a  line  of  steamboats,  is  material.  Hartford  &  New  Haven  Rail- 
road Co.  -z/.  Crosswell,  5  Hill,  383 ;  Marietta  &  Cin.  Railroad  Co.  v.  Elliott, 
10  Ohio  St.  57. 

If  a  corporation  is  formed  to  loan  money  on  movable  property,  an 
amendment  allowing  it  to  receive  deposits  and  do  a  general  banking  busi- 
ness can  be  accepted  only  by  the  unanimous  consent  of  the  stockholders. 
State  v.  Accommodation  Bank,  26  La.  Ann.  288. 

A  change  of  name  is  imm,aterial.  Clark  v.  Monongahela,  Nav.  Co.  10* 
Watts,  364. 


EFFECT    OF    AMENDMENT    ON    STOCKHOLDERS.      2OI 

The  mere  acceptance  of  a  material  amendment,  which  the  corporation 
has  never  attempted  and  may  never  attempt  to  use,  does  not  release  a  sub- 
scriber. Hawkins  v.  Miss.  &  Tenn.  Railroad  Co.  35  Miss.  688;  Fry  v.  L. 
&  B.  S.  R.  R.  Co.  2  Met.  (Ky.)  314;  R.  &  B.  R.  R.  Co.  v.  Thrall,  35  Vt.  536; 
P.  &  O.  R.  R.  Co.  v.  Elting,  17  111.  429;  M.  O.  &  R.  R.  Railroad  Co.  v. 
Caster,  24  Ark.  96. 

A  change  in  the  height  of  a  dam  from  four  feet  to  eight  feet  is  immate- 
rial. Clark  v.  Monongahela  Nav.  Co.  10  Watts,  364;  Gray  v.  Mononga- 
helaNav.  Co.  2  W.  &S.'is6. 

An  act  amending  a  charter  so  as  to  permit  the  directors  to  make  as- 
sessments upon  the  stock,  alters  the  terms  of  the  Contract  between  the 
members  and  the  corporation,  and  is  unconstitutional.  Brown  v.  Fair- 
mount  Co.  30  Leg.  Int.  124. 

If  the  construction  of  the  road  within  a  certain  time  was  an  essential 
inducement  to  the  making  of  the  contract,  an  amendment  extending  the 
time  for  the  completion  of  the  road  will  release  a  subscriber.  Henderson 
v.  Railroad  Co.  17  Tex.  560. 

A  material  alteration  of  the  charter,  accepted  by  the  stockholders  in 
general  meeting  duly  organized,  is  binding  upon  each  individual  member, 
unless  he  expressly  dissents  therefrom  before  any  debts  are  contracted,  or 
rights  inure  to  third  parties,  in  carrying  out  the  new  design  or  enterprise. 
Martin  v.  Pen.  &  Geo.  R.  R.  Co.  8  Fla.  370 ;  Railroad  Co.  v.  Leach,  4 
Jones,  340. 

If  the  alteration  is  material  the  subscriber  will  be  released,  although  he 
was  one  of  the  directors  who  signed  a  petition  to  the  legislature  asking  for 
the  alteration.  Middlesex  Turnpike  Corporation  v.  Swan,  10  Mass.  384. 

If  the  alteration  is  material,  the  subscriber  will  be  released,  although  he 
accepted  the  position  of  director  after  the  adoption  of  the  amendment. 
Middlesex  Turnpike  Corporation  v.  Walker,  10  Mass.  390. 

Where  an  amendment  changes  the  par  value  of  the  shares,  and  the 
proper  number  is  assigned  to  a  stockholder  to  meet  his  original  subscrip- 
tion, a  payment  in  part  is  an  assent  to  the  alteration.  K.  &  P.  R.  R.  Co. 
v.  Palmer,  34  Me.  366. 

A  stockholder  who,  after  the  adoption  of  the  amendment,  votes  at  the 
election  of  the  officers  of  the  corporation,  is  estopped  to  deny  the  validity 
of  his  subscription.  Clark  v.  Monongahela  Nav.  Co.  10  Watts,  364. 

A  consent  to  the  alteration  can  not  be  implied  from  the  acceptance  and 
discharge  of  the  office  of  director  after  the  change  has  been  made.  Mid- 
dlesex  Turnpike  Corporation  v.  Walker,  10  Mass.  390;  Middlesex  Turn- 
pike Corporation  v.  Swan,  10  Mass.  384;  0.  &  L.  R.  R.  Co.  v.  Veazie,  39; 
Me.  571. 


2O2  CONSTITUTION    OF    THE    UNITED    STATES. 

A  subscriber  who  votes  at  the  organization  of  the  corporation  and 
election  of  directors,  after  the  acceptance  of  an  amendment  changing  the 
amount  of  subscriptions  required  before  an  organization,  assents  to  the 
-change.  Bedford  Railroad  Co.  v.  Bowser,  48  Penn.  29. 

An  assent  to  amendments  extending  the  objects  or  increasing  the 
powers  or  enlarging  the  liabilities  of  the  corporation,  is  not  to  be  presumed, 
but  must  be  expressly  shown.  Union  Locks  and  Canals  v.  Towne,  I  N. 
H.44- 

Effect  of  Reserved  Power. 

The  right  to  bind  subscribers  who  do  not  assent  to  the  change  derives 
no  additional  support  from  the  fact  that  a  power  had  been  reserved  to 
amend  the  charter.  The  corporation  is  not  obliged  to  accept  the  amend- 
ment. It  may  assent  or  not,  as  it  chooses.  This  is  just  what  it  might 
have  done  if  the  power  of  amendment  had  not  been  reserved.  The  ques- 
tion whether  an  individual  subscriber  is  bound  or  not  by  the  corporate 
assent  must  be  determined  by  the  same  principles  in  either  case.  Kenosha, 
Rockford  &'Rock  Island  Railroad  Co.  v.  Marsh,  17  Wis.  13;  Zabriskie  v. 
Hackensack  &  N.  Y.  R.  R.  Co.  18  N.  J.  Eq.  178;  Black  v.  Del.  &  Rar. 
Canal  Co.  24  N.  J.  Eq.  455 ;  s.  C.  22  N.  J.  Eq.  130. 

Where  the  power  is  reserved  to  alter  the  charter,  the  stockholder  sub- 
scribes to  the  stock  subject  to  the  power,  and  he  can  not  complain  of  the 
«xercise  of  the  power.  The  agreement  must  be  read  with  the  legislative 
condition.  Schenectady  &  Saratoga  Plank  Road  Co.  v.  Thatcher,  1 1  N. 
Y.  102;  Northern  Railroad  Co.  v.  Miller,  10  Barb.  260;  White  v.  Syr.  & 
Utica  Railroad  Co.  14  Barb.  559;  Buffalo  &  N.  Y.  City  Railroad  Co.  v. 
Dudley,  14  N.  Y.  336;  Meadow  Dam  Co.  v.  Gray,  30  Me.  547;  Pacific 
Railroad  v.  Renshaw,  18  Mo.  210;  Durfee  v.  Railroad  Co.  87  Mass.  230; 
"Story  v.  Jersey  City  P.  R.  Co.  16  N.  J.  Eq.  13. 

If  the  reserved  power  to  alter  the  charter  is  exercised  without  fraud,  the 
alteration  is  valid,  whether  it  is  beneficial  or  injurious  to  the  subscriber,  for 
It  is  a  question  of  power.  Buffalo  &  N.  Y.  City  Railroad  Co.  v.  Dudley, 
14  N.  Y.  336. 

To  work  a  discharge  where  the  power  is  reserved  to  alter  the  charter, 
the  charter  must  be  repealed  or  the  legislation  must  be  such  as  virtually  to 
subvert  the  corporation  itself,  or  at  least  to  destroy  its  identity.  Buffalo  & 
N.  Y.  City  Railroad  Co.  v.  Dudley,  14  N.  Y.  336. 

The  legislature  can  not  authorize  the  extension  of  a  railroad  where  such 
extension  would  be  a  different  enterprise,  although  the  power  is  reserved 
to  repeal,  alter  or  amend  the  charter.  Zabriskie  v.  Hackensack  &  N.  Y. 
Railroad  Co.  18  N.  J.  Eq.  178. 

A  consolidation  of  two  corporations  will  release  the  subscriber,  although 


EFFECT  OF  RESERVED  POWER.          203 

the  power  to  amend  was  reserved  in  the  charter.     Booe  v.  Junction  Rail- 
road Co.  10  Ind.  93. 

The  legislature  can  not  authorize  the  lease  of  a  railroad  for  nine  hun- 
dred and  ninety-nine  years,  although  the  power  is  reserved  to  repeal,  alter 
or  amend  the  charter.  Black  z/.  Del.  &  Rar.  Canal  Co.  24  N.  J.  Eq.  455 ; 
s.  C.  22  N.  J.  Eq.  130. 

Although  the  power  is  reserved  to  alter  the  charter,  the  legislature  can 
not,  in  effect,  create  a  new  corporation  of  a  new  and  distinct  character. 
White  v.  Syr.  &  Utica  Railroad  Co.  14  Barb.  559;  Troy  &  Rutland  Rail- 
road Co.  v.  Kerr,  17  Barb.  581  ;  Booe  v.  Junction  Railroad  Co.  10  Ind.  93 ; 
Buffalo  &  N.  Y.  City  Railroad  Co.  v.  Dudley,  14  N.  Y.  336;  Durfee  -v. 
Railroad  Co.  87  Mass.  230 ;  Zabriskie  v.  Hackensack  &  N.  Y.  Railroad  Co. 
1 8  N.  J.  Eq.  178;  Tyson  v.  Va.  &  T.  R.  R.  Co.  4  A.  L.  T.  223. 

Where  the  power  is  reserved  to  alter  the  charter,  a  railroad  corporation 
may  shorten  the  line  of  its  road.  Troy  &  Rutland  Railroad  Co.  v.  Kerr, 
17  Barb.  581. 

Where  the  power  is  reserved  to  alter  the  charter,  an  amendment  in- 
creasing the  capital  stock  will  not  release  a  subscriber.  Buffalo  &  N.  Y. 
City  Railroad  Co.  v.  Dudley,  14  N.  Y.  336. 

Where  the  power  is  reserved  to  alter  the  charter,  the  name  of.  the  cor- 
poration may  be  changed  without  releasing  a  subscriber.  Buffalo  &  N.  Y. 
City  Railroad  Co.  v.  Dudley,  14  N.  Y.  336. 

Where  the  power  is  reserved  to  alter  the  charter,  the  legislature  may 
authorize  the  corporation  to  subscribe  to  the  capital  stock  of  a  foreign  cor- 
poration. White  v.  Syr.  &  Utica  Railroad  Co.  14  Barb.  559. 

Where  the  power  is  reserved  to  alter  the  charter,  the  corporation  may 
be  authorized  to  reduce  its  capital  stock.  Troy  &  Rutland  Railroad  Co. 
t/.  Kerr,  17  Barb.  581;  Joslyn  v.  Pacific  Mail  Steamship  Co.  12  Abb.  Pr. 
N.  S.  329. 

Where  the  power  is  reserved  to  alter  the  charter,  an  amendment  au- 
thorizing the  corporation  to  borrow  money  to  a  certain  amount,  and  to  pay 
interest  to  stockholders  on  stock  payments  beyond  calls,  does  not  release  a 
stockholder.  Northern  Railroad  Co.  v.  Miller,  10  Barb.  260. 

Where  the  power  is  reserved  to  amend  the  charter,  an  amendment  ex- 
tending the  time  for  the  completion  of  the  road  will  not  release  a  sub- 
scriber. Poughkeepsie  &  S.  P.  Plank  Road  Co.  v.  Griffin,  24  N.  Y.  150; 
S.  C.  21  Barb.  454  ;  Agricultural  Branch  Railroad  Co.  v.  Winchester,  95 
Mass.  29. 

Where  the  power  is  reserved  to  alter  the  charter,  an  amendment  au- 
thorizing an  extension  of  the  road  of  a  railroad  corporation,  will  not  re- 


204  CONSTITUTION    OF    THE    UNITED    STATES. 

lease  a  subscriber.  Buffalo  &  N.  Y.  City  Railroad  Co.  v.  Dudley,  14  N. 
Y.  336;  Pacific  Railroad  Co.  v.  Renshaw,  18  Mo.  210;  Pacific  Railroad 
Co.  v.  Hughes,  22  Mo.  291. 

Where  \he  power  is  reserved  to  alter  the  charter,  an  amendment  which 
increases  the  liabilities  of  the  stockholders  will  not  release  a  subscriber. 
Meadow  Dam  Co.  v.  Gray,  30  Me.  547. 

Where  the  power  is  reserved  to  alter  the  charter,  an  amendment  au- 
thorizing a  railroad  corporation  to  accept  bonds  issued  by  the  State,  and 
mortgage  the  road  to  secure  the  loan,  will  not  release  a  subscriber. 
Pacific  Railroad  Co.  v.  Renshaw,  1 8  Mo.  210;  Pacific  Railroad  Co.  if. 
Hughes,  22  Mo.  291. 

Where  the  power  is  reserved  to  alter  the  charter,  an  am  endment  may 
be  made,  allowing  calls  for  instalments  of  subscriptions  at  the  rate  of  five 
per  centum  per  month  instead  of  twenty-five  per  centum  each  year.  B.  & 
M.  R.  R.  Co.  v.  White,  5  Iowa,  409. 

Where  a  subscription  is  made  upon  the  condition  that  the  amount 
of  capital  required  by  the  charter  shall  be  subscribed,  an  amendment  re- 
ducing the  amount  necessary  to  an  organization  will  not  render  the  sub- 
scriber liable.  O.  &  L.  Railroad  Co.  v.  Veazie,  39  Me.  571. 

Where  the  power  is  reserved  to  alter  the  charter,  the  legislature  may 
authorize  a  railroad  corporation  to  take  a  lease  of  another  railroad.  Dur- 
fee  v.  Railroad  Co.  87  Mass.  230. 

Where  the  power  is  reserved  to  alter  the  charter,  an  amendment  to  the 
charter  of  a  plank  road  company,  authorizing  the  construction  of  branch 
roads,  does  not  release  the  stockholder.  Schenectady  &  Saratoga  Plank 
Road  Co.  v.  Thatcher,  n  N.  Y.  102;  Northern  Railroad  Co.  z/.  Miller,  10 
Barb.  260. 

If  the  power  is  reserved  to  alter  and  amend  the  charter,  an  act  allow- 
ing a  mutual  insurance  company  to  separate  the  risks  of  the  inhabitants  of 
the  country  from  those  of  the  towns,  so  that  each  class  shall  only  be  liable 
to  contribute  for  a  loss  in  its  district,  is  binding  on  the  minority  if  accepted 
by  the  majority  of  the  stockholders.  Currie  v.  Mutual  Assurance  Society, 
4H.  &M.  315. 

Public  Corporation*. 

The  charter  of  a  public  corporation  created  for  purposes  of  govern- 
ment,  can  not  be  considered  as  a  contract.  Marietta  v.  Fearing,  4  Ohio, 
427;  People  v.  Morris,  13  Wend.  325;  Bradford  v.  Cary,  5  Me.  339;  Gov- 
ernor  v.  Gridley,  Walk.  328. 


PUBLIC  CORPORATIONS.  2O5 

A  power  to  alter  and  change  public  corporations,  created  for  purposes 
purely  public,  and  to  adapt  them  to  the  purposes  they  were  intended  to  ac- 
complish,  is  implied  in  their  very  nature.  Bristol  z/.  New  Chester,  3  N.  H. 
524;  State  v.  Railroad  Co.  3  How.  534;  S.  C.  12  G.  &  J.  399;  Bush  v, 
Shipman,  5  111.  186;  City  V.  Russell,  9  Mo.  507:  Aspinwall  v.  Commis- 
sioners, 22  How.  364;  Bridgeport  v.  Hubbell,  5  Conn.  237;  Trustees  z/. 
Aberdeen,  21  Miss.  645;  People  v.  Morris,  13  Wend.  325  ;  Mayors/.  State, 
15  Md.  376;  North  Yarmouth  v.  Skillings,  45  Me.  133  ;  Mills  v.  Williams, 
ii  Ired.  558;  Gatzweiller  z>.  People,  14  111.  142;  Paterson  v.  Society,  24 
N.  J.  L.  385. 

A  grant  of  a  franchise  to  a  public  corporation  may,  at  any  time,  be  re- 
sumed by  the  State.  Trustees  v.  Tatman,  13  111.  27. 

Transactions  between  the  legislature  and  a  municipal  corporation,  in 
relation  to  public  interests,  are  in  the  nature  of  legislation  rather  than  of 
compact,  and  are  not  violated  by  subsequent  legislative  changes.  Hartford 
-z/.  Hartford  Bridge  Co.  10  How.  511  ;  S.  C.  16  Conn.  149  ;  Trustees  v.  Tat- 
man, 13  111.  27;  Layton  z/.  New  Orleans,  12  La.  Ann.  515 ;  Police  Jury  v. 
Shreveport,  5  La.  Ann.  66 1 ;  Reynolds  v.  Baldwin,  I  La.  Ann.  162 ;  vide 
Benson  v.  New  York,  10  Barb.  223. 

The  corporation  which  is  subject  to  legislative  control  is  one  that  is  the 
mere  instrument  or  agent  of  the  State,  through  which  it  exercises  some  of 
Its  political  or  administrative  powers  and  functions,  or  manages  for  its  own 
purposes  the  public  property  of  the  State,  or  conducts  transactions  in 
which  alone  the  State  is  interested.  Louisville  V.  University,  156.  Mon. 
642. 

The  charter  of  a  municipal  corporation  may  be  altered  so  as  to  change 
the  person  on  whom  service  of  process  against  the  corporation  may  be 
made,  and  this  will  not  impair  the  obligation  of  any  contract  previously 
made  by  the  corporation.  Perkins  v.  Watertown,  5  C.  L.  N.  472 ;  S.  C.  5 
Biss.  320. 

A  law  which  repeals  an  act  passed  upon  the  division  of  a  township,  re- 
quiring that  each  of  the  new  towns  thus  created  should  bear  its  proportion 
of  the  expense  of  the  paupers  supported  at  the  time  of  the  division,  is  un- 
constitutional. Bowdoinham  z/.  Richmond,  6  Me.  112. 

The  power  to  divide  the  property  of  a  municipal  corporation  is  neces- 
sarily incident  to  the  power  to  divide  the  territory  of  such  corporation,  and 
thus  form  two  corporations.  Bristol  v.  New  Chester,  3  N.  H.  524  ;  Rich- 
land  z/.  Lawrence,  12  111.  I ;  North  Yarmouth  v.  Skillings,  45  Me.  133. 

A  State  legislature  may  extend  the  limits  of  a  municipal  corporation 
without  the  consent  of  the  citizens  who  live  on  or  own  the  land  comprising 
the  part  to  be  annexed.  Manly  v.  Raleigh,  4  Jones  Eq.  370 ;  Morford  z/. 
Unger,  8  Iowa,  82. 


2O6  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  giving  a  municipal  corporation  the  right  to  purchase  the  prop- 
erty of  a  private  corporation  at  the  expiration  of  its  charter,  may  be  re- 
pealed or  modified  at  pleasure.  Crescent  C.  G.  Co.  v.  New  Orleans  G. 
Co.  27  La.  Ann.  138. 

The  legislature  may  unite  and  divide  townships  and  their  school  funds 
as  it  may  think  best.  Greenleaf  v.  Township,  22  111.  236. 

A  statute  taking  part  of  the  territory  of  one  municipal  corporation  and 
giving  it  to  another  does  not  impair  the  obligation  of  the  contract  made  by 
the  former  with  its  creditors.  Wade  v.  Richmond,  18  Gratt.  583. 

A  State  may  repeal  or  alter  the  charter  of  an  eleemosynary  corporation 
established  for  educational  purposes,  where  it  is  the  sole  contributor  of  the 
fund  which  supports  it,  and  creates  a  corporation  for  the  purpose  simply 
of  carrying  out  its  objects.  Dart  v.  Houston,  22  Geo.  506  ;  Trustees  v. 
Winston,  5  Stew.  &  Port.  17;  Bass  v.  Fontleroy,  11  Tex.  698;  Mobile 
School  Com.  v.  Putnam,  44  Ala.  406. 

The  legislature  may  release  a  party  from  a  contract  entered  into  with  a 
public  corporation  in  relation  to  public  property.  The  corporation  is  sim- 
ply the  agent  authorized  to  bind  the  people.  In  conferring  this  authority 
the  legislature  acted  for  the  people.  The  legislature  can  also  revoke  or  re- 
sume this  authority  at  any  time,  or  confer  it  upon  others.  The  legislature 
may  also,  either  by  its  direct  action,  or  by  authority  conferred  upon  and  ex- 
ercised by  any  designated  agents,  modify  or  rescind  the  contract,  with  the 
assent  of  the  other  party.  People  v.  Fishkill  Plank  Road  Co.  27  Barb.  445. 

The  legislature  can  not  require  a  municipal  corporation  to  rescind  a 
contract  for  the  sale  of  land  held  by  it  for  the  purposes  of  education. 
Butler  z/.  Chariton,  13  Mo.  112. 

The  legislature  can  not  alter  or  revoke  a  municipal  charter  so  as  to  de- 
stroy the  lawful  contracts  of  the  corporation,  or  enact  a  law  impairing  the 
obligation  of  a  contract  made  by  a  municipal  corporation.  Bleakley  v. 
Williams,  20  Pitts.  L.  J.  66. 

If  a  charter  of  a  private  corporation  provides  that  a  municipal  corpora- 
tion may  purchase  the  property  of  the  former  after  the  expiration  of  a 
certain  time,  and  issue  bonds  therefor,  any  subsequent  act  forbidding  the 
issue  of  the  bonds  or  imposing  onerous  conditions  upon  their  issue,  as  that 
the  question  of  their  issue  shall  be  submitted  to  a  vote  of  the  electors,  or 
that  the  ordinance  allowing  the  issue  shall  provide  for  their  payment,  is 
void.  Sala  v.  New  Orleans,  2  Woods,  188. 

If  a  State  law  authorizes  a  municipal  corporation  to  issue  bonds  and 
levy  a  tax  to  pay  the  indebtedness,  no  subsequent  act  can  destroy  the  cor- 
poration, and  thus  impair  the  obligation  of  the  contract.  Milner  v.  Pensa- 
cola,  2  Woods,  632. 


PUBLIC  CORPORATIONS.  2O/ 

An  amendment  to  a  charter  allowing  municipal  corporations  to  subscribe 
to  the  stock  may  be  repealed  before  the  subscriptions  are  completed.  Cov.. 
&  L.  R.  R.  Co.  v.  Kenton,  12  B.  Mon.  144. 

A  State  can  not  release  a  municipal  corporation  from  its  contracts. 
Davenport  Co.  v.  Davenport,  13  Iowa,  229. 

The  legislature  may  provide  that  the  filing  of  the  affidavits  of  the  con- 
sent of  the  tax-payers  to  a  subscription  by  a  municipal  corporation  for  the 
stock  of  a  private  corporation  shall  be  conclusive  evidence  of  such  consent. 
People  -v.  Mitchell,  45  Barb.  208. 

A  statute  to  be  accepted  by  a  municipal  corporation  and  a  private  cor- 
poration may  constitute  a  contract.  Central  Bridge  v.  Lowell,  81  Mass. 
106. 

The  legislature  may  authorize  a  county  corporation  to  change  the  mode 
of  paying  its  subscription  to  a  private  corporation,  with  the  consent  of  the 
latter.  L.  &  N.  R.  R.  Co.  v.  Davidson,  i  Sneed,  637. 

A  State  may  prohibit  a  public  corporation  from  subscribing  to  the 
stock  of  a  private  corporation,  although  the  subscription  has  been  sanc- 
tioned by  a  vote  of  the  people  of  the  county  or  city,  for  until  the  subscrip- 
tion is  made  the  contract  is  unexecuted,  and  obligatory  upon  neither  party. 
Aspinwall  v.  Commissioners,  22  How.  364. 

A  State  during  a  civil  war  has  the  right  to  take  measures  to  remove 
those  who  refuse  to  take  an  oath  of  allegiance  from  the  management  of 
corporations  of  a  public  nature.  State  v.  Adams,  44  Mo.  570. 

The  legislature  may  confirm  an  election  of  municipal  officers  made  by 
mistake  prior  to  the  act  of  incorporation.  State  v.  Kline,  23  Ark.  587. 

The  power  conferred  upon  a  municipal  corporation  to  grant  licenses 
may  be  withdrawn.  Morris  v.  People,  13  Wend.  325  ;  Gatzweiller  v.  People, 
14  111.  142. 

A  forfeiture  in  favor  of  a  municipal  corporation  may  be  waived,  even 
after  it  has  been  incurred.  State  v.  Railroad  Co.  3  How.  534  ;  s.  C.  12  G. 
&  J-  3995  Coles  v.  Madison,  Breese,  115. 

The  power  conferred  upon  a  municipal  corporation  to  raise  a  revenue 
by  taxation  is  a  political  power,  and  its  application  when  collected  must 
necessarily  be  within  the  control  of  the  legislature  for  political  purposes. 
People  v.  Power,  25  111.  187. 

If  a  municipal  corporation  by  its  charter,  or  in  any  other  way,  is  made 
the  trustee  of  an  estate,  its  right  and  title  as  such  is  subject  to  be  defeated 
whenever  the  State  shall  deem  it  necessary  to  abolish  its  existence  as  a 
municipal  organization.  Montpelier  v.  East  Montpelier,  29  Vt.  12;  Bass 
v.  Fontleroy,  1 1  Tex.  698. 


2O8  CONSTITUTION    OF    THE    UNITED    STATES. 

If  the  legislature  gives  the  revenues  accruing  from  a  ferry  to  a  munici- 
pal corporation,  without  any  consideration  inuring  to  the  State  or  onerous 
•condition  imposed  upon  the  corporation,  it  does  not  deprive  itself,  by  ex- 
press or  implied  contract,  of  the  power  of  repealing  or  altering  the  law  at 
will.  It  may  take  those  revenues,  or  a  portion  of  them,  from  the  corpora- 
tion, and  appropriate  them  to  other  purposes.  Police  Jury  v.  Shreveport, 
5  La.  Ann.  66 1 ;  Manks  v.  Donaldson,  24  La.  Ann.  242. 

Where  an  act  of  Congress  granting  lands  to  the  inhabitants  of  a  town- 
ship for  the  use  of  schools  has  been  accepted  by  the  State,  the  State  legis- 
lature can  not  divert  the  fund  from  the  use,  although  it  may  abolish  the 
township.  State  v.  Springfield,  6  Ind.  83 ;  Morton  v.  Granada  Academy, 
1 6  Miss.  773. 

A  charter  exempting  the  capital  stock  of  the  corporation  from  all  taxa- 
tion except  for  State  purposes,  is  binding  on  a  municipal  corporation,  for  it 
is  a  modification  of  the  charter  of  the  latter.  State  Bank  v.  Madison,  3 
Ind.  43  ;  Bank  -v.  New  Albany,  n  Ind.  139. 

The  legislature  can  not  divest  a  municipal  corporation  of  its  private 
property  without  the  consent  of  its  inhabitants.  Milwaukee  v.  Milwaukee, 
12  Wis.  93  ;  Grogan  v.  San  Francisco,  18  Cal.  590. 

If  an  act  of  the  legislature  grants  bonds  to  a  municipal  corporation,  a 
subsequent  statute  vesting  a  right  to  the  bonds  in  others  is  void.  Spauld- 
ing  v.  Andover,  54  N.  H.  38. 

If  money  is  raised  by  a  municipal  corporation  by  taxation  to  aid  in 
building  a  railroad,  and  it  takes  stock  in  its  own  name,  a  subsequent  statute 
requiring  that  the  railroad  corporation  shall  issue  stock  to  the  taxpayers  in 
proportion  to  the  taxes  paid  by  them,  does  not  impair  the  obligation  of  con- 
tracts. Commissioners  v.  Lucas,  93  U.  S.  108. 

Where  a  municipal  corporation  has  condemned  land  as  a  highway,  and 
paid  for  the  same,  a  State  can  not  diminish  the  width  of  the  highway,  and 
give  the  land  back  to  the  former  owner.  People  v.  Commissioners,  53 
Barb.  70;  S.  C.  47  N.  Y.  501. 

Remedies. 

/  The  remedy  is  not  a  part  of  the  contract  itself,  nor  does  the  obligation 
)\  of  a  contract  consist  in  any  particular  form  of  the  remedy.  It  is  only  nec- 
essary that  there  should  be  an  adequate  subsisting  remedy.  It  is  therefore 
competent  for  the  legislature  to  change  the  remedy.  Every  form  of  rem- 
edy is  a  mere  question  of  policy  over  which  the  legislature  has  entire  con- 
trol, so  that  the  power  to  enforce  the  duty  be  not  weakened.  If  the  rem- 
edy given  be  as  good  as 'that  which  was  taken  away,  the  obligation  of  the 
contract  is  not  thereby  impaired.  McMillan  v.  Sprague,  4  How.  (Miss.) 


REMEDIES.  2O9 

647  ;  Lapsley  v.  Brashears,  4  Litt.  47 ;  Davis  v.  Ballard,  i  J.  J.  Marsh.  563  ; 
Bronson  v.  Kinzie,  I  How.  311 ;  Commercial  Bank  v.  State,  12  Miss.  439 ; 
Savings  Institutions.  Makin,  23  Me.  360;  Van  Rensselaer  i>.  Snyder,  13 
N.  Y.  299;  In  re  Trustees  of  Public  Schools,  31  N.  Y.  574;  Longfellow^. 
Patrick,  25  Me.  18;  Pratt  v.  Jones,  25  Vt.  303;  Morse  v.  Gould,  11  N.  Y. 
281. 

If  a  statute  impairs  the  obligation  of  contracts,  it  is  immaterial  whether 
it  is  done  by  acting  on  the  remedy  or  directly  on  the  contract  itself. 
either  case  it  is  prohibited  by  the  Constitution.  Bronson  v.  Kinzie,  I  How. 
311 ;  Green  v.  Biddle,  8  Wheat,  i;  Smith  v.  Morse,  2  Cal.  524;  Johnson 
v.  Duncan,  3  Mart.  531 ;  Coffman  z/.  Bank,  40  Miss.  29. 

The  obligation  of  a  contract,  in  the  sense  in  which  those  words  are  used 
in  the  Constitution,  is  that  duty  of  performing  it  which  is  recognized  and 
enforced  by  the  law,  and  if  the  law  is  so  changed  that  the  means  of  legally 
enforcing  this  duty  are  materially  impaired,  the  obligation  of  the  contract 
no  longer  remains  the  same.  Curran  v.  State,  15  How.  304;  S.  C.  12  Ark. 
321  ;  Green  v.  Biddle,  8  Wheat,  i  ;  Von  Baumbach  v.  Bade,  9  Wis.  559. 

The  epithet  "material"  is  vague,  uncertain  and  calculated  to  confuse 
and  mislead.  Taylor  z/.  Stearns,  18  Gratt.  244. 

The  precise  point  at  which  laws  cease  to  operate  upon  the  remedy  and 
begin  to  infringe  upon  the  obligation  of  the  contract  can  never  be  governed 
by  any  general  rules,  but  must,  in  every  case  where  the  question  is  made, 
be  governed  by  the  circumstances  of  that  case.  Grimes  v.  Bryne,  2  Minn. 
89;  Von  Baumbach  v.  Bade,  9  \Vis.  559;  Von  Hoffman  v.  Quincy,  4  Wall. 
535  ;  Ex  parte  Pollard,  40  Ala.  77. 

The  legislature  may  alter  remedies,  but  they  must  not,  as  far  as  regards 
antecedent  contracts,  be  rendered  less  efficacious  or  more  dilatory  than 
those  ordained  by  the  law  in  being  when  the  contract  was  made.  Town- 
send  v.  Townsend,  Peck,  i. 

Although  a  new  remedy  may  be  deemed  less  convenient  than  the  old 
one,  and  may  in  some  degree  render  the  recovery  of  debts  more  tardy  and 
difficult,  yet  it  will  not  follow  that  the  law  is  unconstitutional.  Bronson  v. 
Kinzie,  i  How.  311  ;  Guild  v.  Rogers,  8  Barb.  502. 

A  change  of  the  remedy,  in  order  to  impair  the  obligation  of  a  contract,, 
must  reach  the  intention  of  the  parties  resulting  from  the  stipulations  in 
the  contract.  Something  contracted  about  must  be  changed.  Commer- 
cial Bank  v.  State,  12  Miss.  439. 

So  long  as  contracts  are  submitted  without  legislative  interference  to, 
the  ordinary  and  regular  course  of  justice,  and  the  existing  remedies  are 
preserved  in  substance,  the  obligation  of  the  contracts  is  not  impaired. 
Holmes  v.  Lansing,  3  Johns  Cas  73 ;  Morse  v.  Gould,  n  N.  Y.  281. 
14 


•210  CONSTITUTION    OF    THE    UNITED    STATES. 

A  condition  will  not  render  an  act  consistent  with  the  Constitution, 
which,  without  such  a  condition,  would  be  in  collision  with  that  instru- 
ment. Lapsley  v.  Brashears,  4  Litt.  47;  Townsend  ?/.  Townsend,  Peck,  i. 

Although  a  State  may  change  the  remedies  that  are  used  before  judg- 
ment, yet  when  the  right  is  judicially  ascertained,  it  can  not  interfere  with 
the  process  to  enforce  that  right  so  as  to  make  it  materially  less  efficient 
than  that  in  existence  when  the  contract  was  made.  Oliver  v.  McClure, 
28  Ark.  555. 

Courts  are  erected  for  the  purpose  of  deciding  contested  rights  when 
those  rights  are  drawn  in  question  before  them,  through  the  instrumentality 
of  remedies  prescribed  by  law  ;  but  courts  exist  independent  of  those  rem- 
edies, and,  in  a  legal  sense,  compose  no  part  of  them.  To  create,  alter  and 
abolish  courts,  and  to  change  their  sessions,  is  a  subject  which  falls  prop- 
erly within  the  sphere  of  legislative  discretion.  Lapsley  V.  Brashears,  4 
Litt.  47;  Rathbone  v.  Bradford,  I  Ala.  312;  Ex  parte  Pollard,  40  Ala.  77; 
Woods  -z/.  Buie,  5  How.  (Miss.)  285  ;  Morse  v.  Gould,  n  N.  Y.  281 ;  John- 
son v.  Duncan,  3  Mart.  531  ;  Wood  v.  Wood,  14  Rich.  148 ;  State  v.  Bar- 
ringer,  Phil.  554;  Newkirk  v.  Chapron,  17  111.  344;  Johnson  v.  Higgins,  3 
Met.  (Ky.)  566. 

If  the  alteration  of  the  remedy  is  merely  the  consequence  of  a  general 
law  whose  primary  and  essential  object  was  to  promote  the  administration 
of  justice,  and  not  specially  to  alter  the  remedy,  the  merely  incidental  delay 
following  from  the  enactment  of  such  a  law,  would  not  render  it  unconsti- 
tutional. Jones  v  Crittenden,  I  Car.  L.  Rep.  385;  Townsend  v.  Town- 
send,  -Peck,  i;  Rathbone  v.  Bradford,  I  Ala.  312;  Wood  v.  Wood,  14 
Rich.  148. 

A  change  of  the  terms  for  holding  courts  which  is  not  an  incidental  and 
subordinate  result  from  a  general  and  permanent  change  in  the  system  of 
judicature,  or  the  course  of  legal  proceedings,  but  operates  on  contracts 
only,  is  void.  Wood  v.  Wood,  14  Rich.  148;  Jacobs  v.  Smallwood,  63 
N.  C.  112 ;  Johnson  -u.  Winslow,  64  N.  C.  27. 

The  change  of  the  remedy  may  affect  pending  actions.  Read  v.  Frank- 
fort Bank,  23  Me.  318;  Oriental  Bank  v.  Freeze,  18  Me.  109;  Woods  v. 
Buie,  5  How.  (Miss.)  285 ;  Lockett  v.  Usry,  28  Geo.  345. 

A  State  has  a  right  to  prescribe  a  remedy  if  there  be  none.  Commer- 
cial Bank  v.  State,  12  Miss.  439;  Simmons  v.  Hanover,  40  Mass.  188; 
Milne  v.  Huber,  3  McLean,  212  ;  Brandon  v.  Gaines,  7  Humph.  130. 

A  statute  repealing  a  prior  act  under  which  a  party  was  exempt  from 
suit  on  his  contracts,  and  rendering  him  liable  to  suit  thereon,  is  valid. 
Stokes  v.  Rodman,  5  R.  I.  405. 

A  mere  change  in  one  of  two  remedies  does  not  impair  the  obligation  of 
a  contract.  Heyward  v.  Judd,  4  Minn.  483. 


REMEDIES.  2  I  I 

A  State  may  provide  a  new  remedy  to  enforce  an  existing  contract. 
Wheat  v.  State,  Minor,  199;  Anon.  2  Stew.  228. 

A  State  legislature  may  repeal  a  statute  under  which  a  contract  is  ille- 
gal, and  authorize  a  suit  thereon.  Milne  v.  Huber,  3  McLean,  212;  Hillz/. 
Smith,  Morris,  70;  Johnson  v.  Bentley,  16  Ohio,  97;  Lewis  v.  McElvain, 
16  Ohio,  347. 

A  statute  which  merely  gives  a  remedy  at  law  where  it  could  previously 
have  been  made  available  in  equity  only,  or  vice  versa,  may  consistently 
with  the  Constitution,  operate  retrospectively  so  as  to  embrace  contracts 
already  made.  Paschall  v.  Whitsell,  II  Ala.  472  ;  Baugher  v.  Nelson,  9 
Gill,  299;  Bethune  v.  Dougherty,  30  Geo.  770. 

Every  stipulation  for  a  particular  remedy  is,  in  its  own  nature,  condi- 
tional upon  the  lawful  continuance  of  the  process.  The  State  is  no  party 
to  the  contract.  It  is  bound  to  afford  adequate  process  for  the  enforce- 
ment of  rights,  but  it  does  not  tie  its  own  hands  as  to  the  modes  by  which 
it  will  administer  justice.  Those,  from  necessity,  belong  to  the  supreme 
power  to  prescribe,  and  their  continuance  is  not  the  subject  of  contract 
between  private  parties.  It  may,  therefore,  abolish  a  particular  remedy, 
although  the  parties  have  stipulated  for  it  in  their  contract.  Conkey  v. 
Hart,  14  N.  Y.  22. 

If  the  covenant  in  a  mortgage  applies  to  the  remedy  and  regulates  it, 
fixing  its  terms  and  its  credit,  and  there  is  no  law  forbidding  it  at  the  time 
it  is  made,  no  subsequent  statute  can  alter  or  change  those  terms.  Poolz/. 
Young,  7  Mon.  587;  Bronson  v.  Kinzie,  I  How.  311. 

In  time  of  war,  commotion  or  epidemics,  circumstances  may  imperiously 
demand  for  a  while  even  a  total  suspension  of  judicial  proceedings.  In 
any  time  obnoxious  to  the  due  administration  of  justice,  it  is  the  duty  and 
within  the  power  of  the  legislature  to  pass  laws  to  avert  or  diminish  the 
consequences  of  the  general  calamity,  and  a  law  called  for  by  such  circum- 
stances, and  fairly  intended  to  meet  the  exigency  of  the  day,  can  not 
be  properly  classed  among  those  which  impair  the  obligation  of  contracts. 
Johnson  v.  Duncan,  3  Mart.  531.;  Ex  parte  Pollard,  40  Ala.  77. 

The  obligation  of  a  contract  and  the  rights  of  a  party  under  it,  may,  in 
effect,  be  destroyed  by  denying  a  remedy  altogether,  or  may  be  seriously 
impaired  by  burdening  the  proceedings  with  new  conditions  and  restric- 
tions so  as  to  make  the  remedy  hardly  worth  pursuing.  Penrose  v.  Reed, 
2  Grant,  472  ;  Western  Saving  Fund  v.  Philadelphia,  31  Penn.  175  ;  Bron- 
son v.  Kinzie,  I  How.  311;  McCracken  v.  Hayward,  2  How.  608;  Riggs 
•z/.  Martin,  5  Ark.  506;  Commercial  Bank  v.  Chambers,  16  Miss.  9;  Mundy 
•v.  Monroe,  I  Mich.  68 ;  Curran  v.  State,  15  How.  304;  S.  C.  12  Ark.  321 ; 
Oatman  v.  Bond,  1 5  Wis.  20. 


212  CONSTITUTION    OF    THE    UNITED    STATES. 

The  right  and  the  remedy,  in  the  theory  of  all  practical  and  just  govern- 
ment, must  stand  or  fall  together.  To  deny  the  right  is  necessarily  to  deny 
the  remedy ;  and  to  admit  the  right  but  deny  the  remedy,  is  to  impair  the 
right  and  to  render  it  either  partially  or  wholly  inoperative.  It  is  more  con- 
sistent to  deny  both  the  right  and  the  consequent  remedy,  than  to  admit 
the  right  and  then,  in  the  face  of  this  admission,  deny  its  inseparable  inci- 
dent. As  the  Constitution  intended  to  prohibit  the  legislature  from  defeat- 
ing a  certain  end,  it  does  not  matter  how  or  by  what  means  or  in  wbat 
manner  this  end  is  sought  to  be  defeated,  the  statute  is  equally  unconstitu- 
tional. If  the  purpose  is  defeated,  the  manner  in  which  it  is  done  is  un- 
important, and  can  not  change  the  substantial  result.  The  only  end  and 
object  of  a  contract  is  the  doing  or  not  doing  the  particular  thing  men- 
tioned. The  practical  result  is  the  only  end  aimed  at  by  the  parties,  and 
the  obligation  of  the  contract  is  the  vital  binding  element  that  secures  this 
practical  consummation.  A  civil  right  without  a  remedy  never  can  exist  in 
the  practical  theory  of  government.  It  is  not  the  intent  of  government  to 
establish  mere  abstract  and  inoperative  principles.  A  dormant  right  that 
can  not  be  enforced  is  no  right  at  all.  To  say  that  the  law  will  give  a  party 
a  judgment  and  yet  refuse  him  an  execution  to  enforce  it,  is  to  give  him 
the  shadow  and  withhold  the  substance.  Robinson  v.  Magee,  9  Cal.  84. 

A  law  absolutely,  recalling  the  power  which  a  creditor  enjoys  of  com- 
pelling his  debtor  in  foro  legis  to  perform  the  obligation  of  his  contract, 
is  a  law  destroying  the  obligation  of  the  contract  in  foro  legis,  since  a  right 
without  a  legal  remedy  ceases  to  be  a  legal  right.  It  impairs  the  obliga- 
tion by  reducing  an  obligation  both  in  foro  legis  and  in  foro  conscientice 
to  an  obligation  in  foro  conscientice  only — a  legal  and  moral  right  to  a  moral 
right- only.  A  law  destroying  or  impairing  the  remedy  is  as  unconstitu- 
tional as  one  affecting  the  right  in  the  same  manner,  for  in  foro  legis  the 
effect  of  both  laws  is  the  same.  Johnson  v.  Duncan,  3  Mart.  531. 

Nothing  is  more  material  to  the  obligation  of  a  contract  than  the  means 
of  its  enforcement.  The  ideas  of  validity  and  remedy  are  inseparable,  and 
both  are  parts  of  the  obligation  which  is  guaranteed  by  the  Constitution 
against  impairment.  Walker  v.  Whitehead,  16  Wall.  314;  S.  C.  43  Geo. 
537  ;  Von  Hoffman  v.  Quincy,  4  Wall.  535. 

The  remedy  is  incident  to  the  contract.  Although  a  party  may  have 
no  right  under  the  contract  to  any  particular  remedy,  yet  he  has  a  right  at 
all  times  to  some  adequate  and  available  remedy  to  enforce  it.  Coffman  v* 
Bank,  40  Miss.  29. 

4  A  State  is  no  more  permitted  to  impair  the  efficacy  of  a  contract  by 
anging  the   remedy,  than  to  attack  its  vitality  in  any  other  manner. 
Walker  v.  Whitehead,  16  Wall.  314;  s.  C.  43  Geo.  537. 

A  judgment  creates  a  contract,  but  is  only  on  the  side  of  the  defendant, 
who  thus  acknowledges  or  assumes  upon  himself  a  debt  which  may  be 


REMEDIES.  213 

made  the  ground  of  an  action.  But,  on  the  side  of  the  plaintiff  the  ne- 
cessity of  resorting  to  certain  means  of  enforcing  the  judgment  is  not  an 
obligation  arising  out  of  contract,  but  one  imposed  upon  him  by  the  laws 
of  the  country,  and  hence  the  remedy  may  be  changed.  Livingston  v. 
Moore,  7  Pet.  469;  Williams  z/.  Waldo,  4  111.  264  ;  Grosvenor  v.  Chesley, 
48  Me.  369 ;  Sprott  v.  Reid,  3  G.  Greene,  489. 

A  law  regulating  judgments  and  executions  can  not  be  considered  as 
a  law  which  enters  into  the  nature  of  contracts,  or  which  the  parties  have  i* 
in  view  when  they  contract.  A  statute  which  deprives  a  judgment  creditor 
of  his  judgment  lien  which  was  acquired  by  the  recovery  of  the  judgment 
alone,  does  not  impair  the  obligation  of  contracts.  McCormick  v.  Alex- 
ander, 2  Ohio,  285;  Bank  v.  Longworth,  i  McLean,  35;  Curry  v.  Landers, 
35  Ala.  280;  Daily  v.  Burke,  28  Ala.  328;  Livingston  z/.  Moore,  7  Pet. 
469. 

A  law  affecting  judgments  not  rendered  on  a  contract  is  valid,  for  the 
obligation  created  by  such  judgments  is  an  obligation  imposed  by  law  and 
not  an  obligation  of  a  contract  made  between  the  parties.  Sprott  v.  Reid, 
3  G.  Greene,  489. 

A  statute  may  provide  that  a  case  shall  not  be  tried  at  the  return  term, 
but  at  a  subsequent  term,  thus  allowing  a  parlance  term  between  the  re- 
turn of  the  writ  and  the  trial  term,  for  the  legislature  may  fix  the  time  and 
mode  of  trial.  Woods  v.  Buie,  5  How.  (Miss.)  285. 

The  power  to  limit  or  extend  the  time  for  answering,  or  within  which 
any  other  step  in  an  action  shall  be  taken,  is  and  must  be  conceded.  The 
only  limit  or  qualification  to  its  exercise  is  that  the  legislature  shall  confine 
their  action  within  the  bounds  of  reason  and  justice,  and  that  they  shall 
not  so  prolong  the  time  within  which  legal  proceedings  are  to  be  had,  as 
to  render  them  futile  and  useless  in  the  hands  of  the  creditor,  or  seriously 
impair  his  rights  or  securities.  Von  Baumbach  v.  Bade,  9  Wis.  559. 

A  statute  changing  the  time  for  holding  the  court  does  not  impair  the 
obligation  of  a  contract,  although  the  laws  of  the  State  require  an  indorsee 
to  sue  the  maker  of  a  promissory  note,  at  the  first  term  held  after  its  non- 
payment. Rathbone  v.  Bradford,  i  Ala.  312. 

A  statute  providing  for  a  delay  in  the  time  of  trial  is  valid.  Ex  parte 
Pollard,  40  Ala.  77. 

A  statute  permitting  either  party  to  give  in  evidence  the  consideration 
and  the  value  thereof  at  any  time,  and  the  intention  of  the  parties  as  to 
the  particular  currency  in  which  payment  was  to  be  made,  and  the  value  of 
such  currency  at  any  time,  and  directing  that  the  verdict  and  judgment 
shall  be  on  principles  of  equity,  is  valid.  Robeson  v.  Brown,  63  N.  C. 
554;  King  v.  W.  &  W.  R.  R.  Co.  66  N.  C.  277  ;  Slaughter  v.  Culpepper, 
35  Geo.  25;  Taylor  v.  Flint,  35  Geo.  124;  Rutland  v.  Copes,  15  Rich.  84; 


214  CONSTITUTION    OF    THE    UNITED    STATES. 

Kirtland  v.  Molton,  41  Ala.  548  ;  Tarleton  v.  Southern  Bank,  41  Ala.  722 ; 
Herbert  v.  Easton,  43  Ala.  547. 

A  statute  which  allows  the  parties  to  show  by  parol  evidence  what  the 
understanding  was  in  regard  to  the  kind  of  currency  in  which  the  contract 
was  solvable,  is  valid,  for  it  facilitates  the  means  of  ascertaining  what  the 
contract  was.  Woodfin  v.  Slader,  Phillips,  200. 

A  State  law  providing  that  either  party  to  a  contract  made  during  a 
civil  war  may  give  in  evidence  the  consideration  and  value  thereof,  and 
the  intention  of  the  parties  as  to  the  particular  currency  in  which  payment 
was  to  be  made,  and  the  value  of  such  currency,  and  that  judgment  shall 
be  on  principles  of  equity,  is  valid.  Slaughter  v.  Culpepper,  35  Geo.  25. 

A  statute  allowing  the  parties  to  give  in  evidence  the  consideration  of 
the  contract,  the  amount  and  value  of  the  property  owned  by  the  debtor 
at  the  time  the  contract  was  made,  the  destruction  or  loss  thereof,  and  in 
what  manner  it  was  destroyed  or  lost,  and  giving  the  jury  the  power  to  re- 
duce the  amount  of  the  debt  according  to  the  equities  of  the  case,  and 
render  such  verdict  as  appears  just  and  equitable,  is  valid.  Cutts  v. 
Hardee,  38  Geo.  350. 

A  statute  of  a  State  which  permits  an  inquiry  to  be  made  into  the  con- 
sideration of  a  sealed  instrument,  and  which  was  in  force  at  the  time  of 
the  execution  of  the  contract  in  another  State,  does  not  impair  the  obliga- 
tion of  the  contract,  for  the  lex  fort  controls.  Williams  v.  Raines,  27 
Iowa,  251. 

A  statute  passed  after  the  execution  of  a  tax  deed,  which  enacts  that 
the  deed  shall  not  be  presumptive  evidence  of  the  regularity  of  the  sale,  is 
valid.  Hickox  ^Tallman,  38  Barb.  608. 

The  legislature  can  not  cut  off  or  destroy  the  rights  of  a  bona  fide 
holder  for  value  of  commercial  paper  by  changing  the  rules  of  pleading  or 
the  laws  of  evidence.  Cornell  v.  Hichens,  n  Wis.  353. 

A  statute  which  makes  a  protest  of  a  promissory  note  evidence  of  the 
facts  therein  stated  is  valid,  for  it  only  affects  the  mode  of  proceeding. 
The  legislature  may  prescribe  what  shall  and  what  shall  not  be  evidence  of 
a  fact,  whether  it  be  in  writing  or  oral,  and  it  makes  no  difference  whether 
it  be  in  reference  to  contracts  existing  at  the  time  or  prospectively.  Fales 
v.  Wadsworth,  23  Me.  553. 

A  statute  dispensing  with  the  necessity  of  proving  the  names  of  the 
individual  partners  in  a  suit  against  a  firm  is  valid.  Ballard  v.  Ridgley, 
Morris,  27. 

A  statute  dispensing  with  the  necessity  of  proving  the  signature  to  a 
written  instrument  in  an  action  against  the  maker,  unless  he  files  a  denial 
of  the  same  under  oath,  is  valid.  Ingraham  v.  Dooley,  Morris,  28. 


REMEDIES.  215 

A  statute  making  parties  competent  witnesses  in  their  own  behalf  is 
valid.  Ralston  v.  Lothain,  18  Ind.  303  ;  Neass  v.  Mercer,  15  Barb.  318. 

The  legislature  may  change  the  rules  of  evidence  so  as  to  affect  prior 
contracts.  People  v.  Mitchell,  45  Barb.  208. 

A  statute  providing  that  no  judgment  shall  be  entered  against  a  munic- 
ipal corporation,  except  upon  proof  that  the  amount  sought  to  be  recov- 
ered still  remains  unexpended  in  the  treasury  to  the  credit  of  the  appropria- 
tion for  the  specific  object  or  purpose  under  the  claim  sued  for,  is  void. 
Wood  v.  New  York,  6  Robt.  463. 

Where  the  law  at  the  time  of  the  sale  makes  a  tax  deed  prima  facie 
evidence  of  title,  a  subsequent  statute  may  provide  that  secondary  evidence 
of  the  deed  shall  not  be  prima  facie  evidence  of  the  regularity  of  the  sale.. 
Roby  v.  City,  64  111.  447. 

An  act  which  merely  accelerates  the  remedy,  or  gives  a  more  summary 
remedy  in  case  of  a  default  in  the  performance  of  a  contract,  is  valid.  The 
legislature  is  not  bound  to  continue  the  same  forms  and  the  same  system 
of  courts  and  proceedings  for  the  accommodation  of  debtors  or  creditors. 
Stoddard  v.  Smith,  5  Binn.  355;  Grubbs  v.  Harris.  I  Bibb,  567;  Vanzant 
v.  Waddell,  2  Yerg.  260 ;  Livingston  v.  Moore,  7  Pet.  469 ;  Rathbone  v. 
Bradford,  i  Ala.  312;  Maynes  v.  Moore,  16  Ind.  116;  Hopkins  v.  Jones, 
'22  Ind.  310;  Webb  v.  Moore,  25  Ind.  4;  Smith  v.  Bryan,  34  111.  264; 
Wheat  v.  State,  Minor,  199  ;  Citizens'  Bank  v.  Degnoodt,  25  La.  Ann.  628. 

A  statute  authorizing  an  attachment  may  apply  to  causes  of  action  ex- 
isting before  its  passage.  Coosa  River  Steamboat  Co.  -z/.  Barclay,  30  Ala. 
120. 

A  law  taking  away  the  remedy  by  attachment  is  valid.  Leathers  v. 
Shipbuilders'  Bank,  40  Me.  386;  Bigelow  v.  Pritchard,  38  Mass.  169  ;  Dan- 
ley  v.  State  Bank,  15  Ark.  16 ;  Allis  v.  State  Bank,  15  Ark.  19 ;  Krebs  v. 
State  Baak,  15  Ark.  19. 

A  statute  allowing  an  attachment  to  be  issued  and  laid  in  the  hands  of 
the  stockholders,  without  previously  exhausting  the  assets  of  the  bank,  is 
valid.  Smith  v.  Bryan,  34  111.  264. 

An  attachment  law  does  not  impair  the  obligation  of  the  contract  be- 
tween the  garnishee  and  the  debtor,  but  merely  provides  that  the  former 
shall  pay  the  money  to  a  creditor  of  the  latter,  and  thereby  be  discharged 
-therefrom.  Philbrick  v.  Philbrick,  39  N.  H.  468;  Klaus  is.  City,  34  Wis. 
628. 

-  A  statute  permitting  amendments  in  proceedings  by  attachment,  which 
applies  to  pending  as  well  as  prospective  suits  is  constitutional,  for  ai>onds- 
man  assumes  his  responsibility  subject  to  various  amendments  of  the  writ 


2l6  CONSTITUTION    OF    THE    UNITED    STATES. 

and  declaration  in  matters  of  form,  and  to  such  modifications  of  the*mode 
of  proceeding  as  the  legislature  may  think  proper  to  make.  It  relates  to 
the  remedy  alone.  Knight  v.  Dorr,  36  Mass.  48. 

A  retrospective  law  depriving  a  party  of  the  right  to  enforce  a  contract 
if  the  taxes  have  not  been  regularly  paid  thereon  since  the  making  thereof, 
is  void.  Walker  v.  Whithead,  16  Wall.  314;  S.  C.  43  Geo.  537;  Griffiths 
•z/.  Shipp,  49  Geo.  231  ;  Lathrop  v.  Brown,  I  Woods,  474 ;  Kimbro  v.  Bank, 
49  Geo.  419;  Gardner  v.  Jeter,  49  Geo.  195  ;  Mitchell  v.  Cothrans,  49  Geo. 
125  ;  Dougherty  v.  Fogle,  50  Geo.  464. 

A  statute  prohibiting  persons  aiding  the  rebellion  against  the  United 
States  from  prosecuting  or  defending  actions  during  the  continuance  of  the 
rebellion  is  void.  Davis  v.  Pierse,  7  Minn.  13 ;  McFarland  v.  Butler,  8  Minn. 
116;  Jackson  v.  Butler,  8  Minn.  117. 

A  statute  requiring  suitors  to  take  a  test  oath  of  loyalty  in  order  to  main- 
tain a  suit  is  valid.  Beirne  v.  Brown,  4  W.  Va.  72. 

A  statute  creating  a  lien  upon  the  property  of  the  debtor  in  favor  of 
existing  contracts  is  valid,  for  it  merely  affects  the  remedy.  Bolton  v.  Johns, 
5  Penn.  145;  Brien  v.  Clay,  I  E.  D.  Smith,  649;  Gordon  v.  Canal  Co.  I 
McA.  513;  contra,  Kinney  v.  Sherman,  28  111.  520. 

A  statute  enabling  parties  who  have  dealt  with  a  contractor  to  file  a 
lien  claim,  and  obtain  payment  from  the  owner  of  the  property,  is  valid,  for 
it  only  provides  a  new  remedy  for  the  collection  of  a  debt  which  one  owes, 
and  the  other  has  the  money  of  the  debtor  to  pay  with.  Sullivan  v.  Brew- 
ster,  i  E.  D.  Smith,  68 1 ;  Miller  v.  Moore,  I  E.  D.  Smith,  739. 

A  mechanics'  lien  law  is  altogether  a  statutory  remedy  created  by  the 
legislature  as  a  boon  to  a  favored  class  of  the  community,  for  the  special 
encouragement  of  labor  in  the  erection  of  houses,  and  is  subject  to  the  con- 
trol of  the  legislature  either  to  alter,  vary,  or  modify  it,  or  repeal  it  altogether. 
Evans  v.  Montgomery,  4  W.  &  S.  218. 

If  the  mechanics'  lien  law  has  given  a  lien  upon  the  property  on  which 
the  improvements  were  made,  without  reference  to  the  interest  of  the  builder 
therein,  it  may_  be  so  modified  as  to  restrict  the  lien  to  the  interest  and 
estate  of  the  builder.  Evans  v.  Montgomery,  4  W.  &  S.  218. 

A  statute  enacting  that  the  suit  must  be  brought  in  the  name  of  the  real 
party  in  interest  merely  affects  the  remedy,  and  is  valid.  Hancock  v.  Ritchie, 
ii  Ind.  48. 

A  statute  allowing  an  assignee  of  a  chose  in  action  to  bring  suit  in  his 
own  name  is  valid  in  its  application  to  instruments  executed  before  its  pass- 
age. It  does  not  alter  the  nature  of  the  instruments  in  any  shape,  or  in  any 
manner  vary  or  affect  the  terms  of  the  contracts.  Ford  v.  Hale,  I  Mon.  23  ; 
Harlan  v.  Sigler,  Morris,  39. 


REMEDIES.  217 

A  statute  authorizing  the  assignee  of  a  chose  in  action  to  sue  in  his  own 
name,  can  not  prevent  the  maker  from  availing  of  the  equities  existing  be- 
tween him  and  the  assignor  at  the  time  of  its  passage.  Harlan  v.  Sigler, 
Morris,  39. 

If  a  statute  prohibiting  the  transfer  of  choses  in  action  also  prohibits 
any  action  thereon  after  a  transfer  either  in  the  name  of  the  assignee  or  the 
assignor,  it  is  unconstitutional.  Planters'  Bank  v.  Sharp,  6  How.  301 :  S.  C. 
12  Miss.  28;  Mclntyre  v.  Ingraham,  35  Miss.  25  ;  Jemison  v.  Planters' 
Bank,  23  Ala.  168;  Montgomery?/.  Galbraith,  19  Miss.  555  ;  Grand  Gulf 
R.  R.  Co.  v.  State,  18  Miss.  428  ;  vide  Hyde  v.  Planters'  Bank,  8  Rob.  (La.) 

416. 

• 

Imprisonment  of  the  debtor  may  be  a  punishment  for  not  performing 
his  contract,  or  may  be  allowed  as  a  means  of  inducing  him  to  perform  it. 
Imprisonment  is  no  part  of  the  contract,  and  simply  to  release  the  prisoner 
does  not  impair  its  obligation.  A  State,  therefore,  has  the  right  to  abolish 
imprisonment  for  debt  altogether,  and  such  law  may  extend  to  present  as 
well  as  future  punishment.  Gray  v.  Munroe,  I  McLean,  528  ;  Mason  v. 
Haile,  12  Wheat.  370  ;  Sommers  v.  Johnson,  4  Vt.  278  ;  Oriental  Bank  v. 
Freeze,  18  Me.  109;  People  v.  Carpenter,  46  Barb.  619;  Brown  v.  Dilla- 
hunty,  12  Miss.  713  ;  Woodfin  v.  Hooper,  4  Humph.  13;  Fisher  v.  Lacky, 
6  Blackf.  373  ;  .Beers  v.  Haughton,  9  Pet.  329  ;  Mercer's  Case,  4  Hairing. 
248  ;  Donnelly  V.  Corbett,  7  N.  Y.  500  ;  Newton  v.  Tibbatts,  7  Ark.  1 50  ; 
Bronson  v.  Newberry,  2  Doug.  38. 

When  the  statute  in  force  at  the  time  the  bond  was  given  reserves  the 
right  to  change  the  limits  of  the  jail,  such  change  does  not  impair  the  obli- 
gation of  the  bond.  Reed  v.  Fullum,  19  Mass.  158. 

A  State  legislature  may  pass  a  statute  assigning  new  limits  for  a 
prison,  and  thus  affect  jail  bonds  previously  given.  Reed  v.  Fullum,  19 
Mass.  158;  Walter  v.  Bacon,  8  Mass.  468  ;  Holmes  v.  Lansing,  3  Johns. 
Cas.  73. 

A  statute  may  provide  for  the  discharge  of  a  jail  bond  in  a  manner  dif- 
ferent from  that  named  in  the  bond.  Morse  v.  Rice,  21  Me.  53;  Oriental 
Bank  v.  Freeze,  18  Me.  109. 

Where  a  creditor,  at  the  time  of  the  contracting  of  the  debt,  had  the 
right,  on  a  return  of  nulla  dona,  to  have  the  rents,  tolls,  profits,  rights  and 
credits  of  a  corporation  sequestered,  the  State  can  not  enact  that  a  writ 
of  sequestration  shall  not  issue  unless  the  corporation  is  guilty  of  misman- 
agement, misapplication  of  its  funds,  or  willful  delay  in  discharging  its  lia- 
bilities. Penrose  v.  Erie  Canal  Co.  56  Penn.  46. 

A  statute  requiring  a  creditor  to  exhaust  his  securities  before  bringing 
suit  on  his  claim,  is  valid,  for  it  merely  regulates  the  order  in  which  several 
remedies  shall  be  pursued.  Swift  v.  Fletcher,  6  Minn.  550. 


2l8  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  which  does  not  divest  the  remedy,  but  merely  changes  the 
form  of  it,  is  constitutional.  Thayer  v.  Seavey,  1 1  Me.  284. 

A  statute  which  requires  a  party  to  record  an  abstract  of  his  judgment 
within  a  certain  time,  in  order  to  preserve  his  lie.n,  is  valid,  for  it  leaves  it 
entirely  at  the  discretion  of  the  creditor,  whether  he  will  preserve  it  or  not. 
Tarpley  v.  Hamer,  17  Miss.  310. 

A  statute  allowing  a  municipal  corporation  to  set  off  a  claim  for  benefits 
against  a  claim  for  damages,  is  valid.  Baldwin  v.  Newark,  38  N.  J.  158. 

A  statute  allowing  the  bills  of  a  bank  to  be  tendered  in  payment  of  any 
debt  due  to  it,  is  valid.  Exchange  Bank  v.  Tiddy,  67  N.  C.  169;  Bank  v. 
*Hart,  67  N.  C.  264. 

Where  a  State  creates  a  bank,  and  invests  its  funds  therein,  a  statute 
directing  that  the  assets  shall  be  sold  and  deposited  in  the  treasury,  with- 
out providing  for  the  creditors  of  the  bank,  is  void,  for  it  withdraws  the  as- 
sets from  the  operation  of  all  legal  process.  State  v.  Bank,  I  Rich.  N.  S.  63. 

A  statute  which  enacts  that  the  obligors  in  official  bonds  shall  not  have 
the  benefit  of  stay  laws  or  appraisement  laws,  is  valid,  for  it  gives  force  to 
the  contract  by  increasing  the  means  to  be  used  in  enforcing  performance 
of  it.  Pierce  v.  Mill,  21  Ind.  27. 

A  statute  changing  the  manner  of  commencing  the  action,  serving  no- 
tice and  proceeding  to  judgment,  is  valid.  McCreary  v.  State,  27  Ark.  425. 

A  debtor  in  default  has  no  vested  right  to  have  his  property  sold  in  any 
particular  way.  Tuolumne  Redemption  Co.  v.  Sedgwick,  i5Cal.  $1$. 

A  statute  allowing  the  holder  of  a  coupon  detached  from  the  bond  to 
sue  thereon  in  his  own  name  is  valid.  Augusta  Bank  V.  Augusta,  49  Me. 
507. 

So  far  as  laws  relating  to  executions  are  merely  remedial,  they  may  be 
modified  or  changed  at  any  time.  The  sheriff  may  be  allowed  to  give  a 
deed  instead  of  a  certificate.  Coriell  v.  Ham,  4  G.  Greene,  455. 

A  statute  which  provides  that  no  action  shall  be  brought  upon  a  prom- 
ise to  pay  a  debt  from  which  the  debtor  has  been  discharged  in  bank- 
ruptcy, unless  the  promise  is  in  writing,  is  valid,  although  it  applies  to  prior 
verbal  promises.  Kingsley  V.  Cousins,  47  Me.  91. 

The  legislature  may  prescribe  a  different  rule  for  the  sendee  of  process 
on  a  corporation  from  that  existing  at  the  time  when  the  charter  was 
granted,  for  such  a  rule  relates  to  the  remedy  and  not  to  the  obligation  of 
the  contract.  New  Albany  &  Salem  Railroad  Co.  v.  McNamara,  1 1  Ind. 
543- 


REMEDIES.  219 

An  alteration  of  the  remedy '  to  enforce  the  forfeiture  of  a  charter,  is 
valid,  although  it  applies  to  prior  charters.  Aurora  Turnpike  Co.  v.  Holt- 
house,  7  Ind.  59. 

A  statute  may  reduce,  the  costs  below  the  legal  amoun't  by  the  law  in 
force  when  the  right  of  action  accrued,  or  deny  them  altogether.  Potter  v. 
Sturdivant,  4  Me.  154;  Free  v.  Haworth,  19  Ind.  404 ;  Raderz/.  S.  R.  Dis- 
trict, 36  N.  J.  273. 

A  statute  authorizing  a  corporation  to  sue  in  its  own  name  upon  notes 
made  payable  to  its  cashier,  is  valid,  for  it  is  strictly  remedial,  and  carries 
out  the  contract  according  to  its  original  intendment.  Crawford  v.  Bank, 
7  How.  279. 

A  statute  allowing  a  judge  and  commissioner  to  reduce  the  account  of 
a  depositor  in  a  savings  bank,  when  the  assets  are  less  than  the  deposits, 
affects  the  remedy,  and  is  valid.  Simpson  v.  Savings  Bank,  56  N.  H.  466. 

When  the  legislature  requires  a  contract  to  be  entered  into  collateral  to 
the  original,  and  as  a  part  of  the  remedy  to  enforce  it,  the  rights  which  it 
gives  arise  only  out  of  the  statute  provision,  and  not  out  of  any  agreement 
of  the  parties,  and  are  therefore  liable  to  be  modified  by  statute.  Morse  v. 
Rice,  21  Me.  53;  Oriental  Bank  v  Freeze,  18  Me.  109. 

A  statute  allowing  an  administrator  de  bom's  non  to  sue  in  the  name  of 
the  State,  on  the  bond  of  his  predecessor,  is  valid,  although  the  right  did 
not  exist  when  the  bond  was  made,  for  it  merely  regulates  the  manner  of 
enforcing  the  bond,  without  enlarging  or  varying  the  liabilities  of  the  obli- 
gors. Graham  v.  State,  7  Ind.  470. 

A  statute  which  requires  that  the  maker  and  indorsers  of  a  promissory 
note  shall  be  sued  in  joint  actions  does  not  impair  the  obligation  of  the  con- 
tract. McMillan  v.  Sprague,  4  How.  (Miss.)  647. 

A  statute  requiring  appraisement  before  a  sale  under  an  execution,  re- 
lates to  the  remedy,  and  is  valid.  Catlin  v.  Munger,  I  Tex.  598. 

A  statute  may  provide  that  a  corporation  may  be  sued  in  the  county 
where  a  tort  committed  by  it  occurs,  for  a  suit  is  a  remedy,  and  venue  is 
but  an  incident  of  suit.  Davis  v.  Central  R.  R.  Co.  17  Geo.  323. 

The  appointment  of  a  receiver  upon  the  dissolution  of  a  corporation, 
with  a  provision  that  all  demands  shall  be  prosecuted  against  him  alone, 
is  merely  a  change  of  the  remedy.  Read  v.  Frankfort  Bank,  23  Me.  318; 
Leathers  v.  Shipbuilders'  bank,  40  Me.  386. 

A  statute  which  provides  that  on  all  executions  in  favor  of  banks  or 
their  assignees,  the  notes  of  the  banks  shall  be  received  in  payment  and 
discharge  of  the  judgment  is  valid  when  it  does  not  affect  the  rights  of  the 
bona  fide  holders  of  notes,  for  it  affects  the  remedy.  Bank  v.  Domiganr 
12  Ohio,  220. 


220  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  allowing  parties  to  institute  suits  upon  an  official  bond,  in- 
stead of  issuing  a  scire  facias  upon  a  judgment  already  rendered  in  favor 
of  another,  merely  changes  the  remedy  and  is  valid.  White  v.  Wilkins,  24 
Me.  299. 

A  statute  permitting  one  plaintiff  to  recover  in  an  action  of  ejectment, 
although  another  joint  plaintiff  may  fail  to  establish  his  title,  does  not  im- 
pair any  contract.  Hinckle  v.  Riffert,  6  Penn.  196. 

A  statute  which  requires  that  a  new  promise  to  pay  a  debt  barred  by 
•the  statute  of  limitations  shall  be  in  writing  is  valid  if  it  applies  only  to 
promises  made  after  its  passage.  Joy  v.  Thompson,  I  Doug.  373. 

A  statute  permitting  one  firm  to  sue  another  at  law,  although  some 
parties  are  members  of  both  firms,  affects  the  remedy  merely,  and  is  valid. 
Hepburn  v.  Curts,  7  Watts,  300. 

The  right  to  dower  arises  solely  by  operation  of  law,  and  nqt  by  force 
of  any  contract,  express  or  implied  between  the  parties.  A  statute  pro- 
viding that  the  estate  on  the  application  of  creditors  shall  be  sold  free  from 
the  dower,  and  the  claim  transferred  to  the  proceeds,  is  remedial  and  valid. 
Lawrence  v.  Miller,  I  Sandf.  516 ;  S.  C.  2  N.  Y.  245. 

A  statute  which  requires  a  minor,  in  enforcing  his  lien,  to  proceed 
against  the  land  of  the  tutor  most  recently  alienated,  is  valid,  although  he 
could  previously  have  proceeded  against  any  portion  of  it,  for  every  person 
who  is  obliged  to  resort  to  the  court  to  enforce  his  rights  must  submit  to  * 
the  forms  and  delays  which  the  law  may  from  time  to  time  prescribe. 
Patin  V.  Prejean,  7  La.  301. 

A  State  law  providing  that  no  scire  facias  shall  be  issued  to  revive  a 
-dormant  judgment,  is  valid,  for  it  leaves  the  creditor  to  his  common-law 
remedy  by  an  action  of  debt.  Parker  z>.  Shannonhouse,  Phillips,  209. 

A  statute  which  takes  from  a  creditor  the  right  to  proceed  against  the 
stockholders,  and  vests  it  in  a  trustee,. and  directs  that  the  assets  of  the  cor- 
poration shall  be  first  exhausted,  is  valid.  Story  v.  Furman,  25  N.  Y.  214. 

A  statute  anthorizing  receivers  to  sell  property  free  from  encum- 
brances, and  transferring  the  lien  to  the  proceeds,  does  not  impair  the  ob- 
ligation of  any  contract,  but  merely  affects  the  remedy.  Potts  v.  Water 
Power  Co.  9  N.  J.  Eq.  592. 

A  statute  which  provides  that  the  securities  shall  be  forfeited,  if  the 
creditor  sues  upon  the  claim  without  first  exhausting  them,  is  void.  Swift 
v.  Fletcher,  6  Minn.  550. 

The  courts,  upon  a  proper  case,  may  substitute  one  surety  for  costs  in 
the  place  of  another.  There  is  no  contract  on  the  part  of  the  person  in- 
tended to  be  benefited  by  taking  the  surety.  The  law  takes  the  surety  to 


REMEDIES.  221 

protect  him  from  loss,  and  he  has  no  right  to  ask  more  at  the  hands  of 
the  court  than  that  this  shall  be  done.  He  acquires  no  right  by  a  con- 
tract to  hold  any  particular  person  liable,  provided  the  court  will  substitute 
another  who  can  equally  protect  him  from  loss.  Craighead  v.  Bank,  i' 
Meigs,  199. 

The  right  of  a  purchaser  at  a  tax  sale  to  a  deed,  can  not  be  taken  away 
by  a  repeal  of  a  statute  authorizing  the  execution  of  a  deed.  Bruce  v* 
Schuyler,  4  Oilman,  221. 

Any  law  passed  after  the  execution  of  a  contract,  which  denies,  ob- 
structs or  impairs  the  right  to  sell  the  property  of  the  debtor  under  an  ex- 
ecution at  a  fair  public  sale  to  the  highest  bidder,  by  superadding  a 
condition  that  there  shall  be  no  sale  for  any  sum  less  than  the  value  of  the 
property  levied  on,  to  be  ascertained  by  appraisement  or  any  other  mode 
of  valuation  than  a  public  sale,  affects  the  obligation  of  the  contract,  and 
is  repugnant  to  the  Constitution.  Hunt  v.  Gregg,  8  Blackf.  105 ;  Shaffer 
v.  Bolander,  4  G.  Greene,  201 ;  Burton  v.  Emerson,  4  G.  Greene,  393  ;  Mc- 
Cracken  v.  Hayward,  2  How.  608 ;  Gantly  v.  Ewing,  3  How.  707  ;  Smoot 
77.  Lafferty,  2  Gilman,  383  ;  Rosier  v.  Hale,  10  Iowa,  470;  U.  S.  v.  Con- 
way,  Hemp.  313;  Bronson  v.  Kinzie,  I  How.  34;  Baily  v.  Gentry,  i  Mo. 
164  ;  Rawley  v.  Hooker,  21  Ind.  144;  contra,  Waldo  v.  Williams,  4  111. 
264 ;  Catlin  v.  Munger,  i  Tex.  598. 

Where  a  State  has  authorized  a  municipal  corporation  to  contract  and 
to  exercise  the  power  of  local  taxation  to  the  extent  necessary  to  meet  its 
engagements,  the  power  thus  given  can  not  be  withdrawn  until  the  con- 
tract is  satisfied.  The  State  and  the  corporation  are  equally  bound.  Von 
Hoffman  v.  Quincy.  4  Wall.  535 ;  Lansing  v.  County,  i  Dill.  522  ;  S.  C.  2 
Abb.  C  C.  53. 

A  statute  which  prohibits  a  municipal  corporation  from  levying  taxes 
to  pay  a  judgment,  is  void  if  it  deprives  the  creditor  of  every  efficient  means 
for  collecting  his  debt.  Soutter  v.  Madison,  1 5  Wis.  30. 

A  statute  which  deprives  a  creditor  of  his  remedy  upon  a  judgment 
against  a  municipal  corporation  forever,  unless  the  legislature  shall  in  its 
discretion,  at  some  future  time,  by  a  new  law,  provide  for  its  payment,  is 
void.  Hadfield  v.  New  York,  6  Robt.  501. 

A  statute  making  one  municipal  corporation  liable  on  a  contract,  in- 
stead of  another  is  valid,  if  all  the  rights  of  enforcing  the  judgment  are 
preserved.  Rader  v.  S.  R.  District,  36  N.  J.  273. 

A  statute  giving  the  grantee  of  a  rent  charge  the  right/)f  re-entry  for 
non-payment  of  the  rent,  is  valid,  for  it  merely  affects  the  remedy.  Van 
Rensselaer  v.  Ball,  19  N.  Y.  100. 

A  statute  authorizing  the  grantee  of  a  rent  charge  to  sue  at  law  in  his 
own  name,  is  valid,  for  it  operates  on  the  remedy.  Independently  of  the 


222  CONSTITUTION    OF    THE    UNITED    STATES. 

statute  he  could  sue  in  the  name  of  the  grantor.     Van  Rensselaer  v.  Hays, 
19  N.  Y.  68. 

An  act  taking  away  the  priority  of  a  claim  for  rent  in  case  of  the  levy 
of  an  execution  upon  the  goods  of  a  tenant,  is  valid.  Stocking  V,  Hunt,  3 
Denio,  274. 

A  statute  giving  an  action  of  covenant  against  the  assignee  of  a  lease- 
hold estate,  pertains  to  the  remedy  and  is  valid.  Taggart  v.  McGinn,  14 
Penn.  155. 

A  statute  abolishing  distress  for  rent  is  valid,  and  may  apply  to  leases 
in  which  such  a  power  is  reserved.  Conkey  v.  Hart,  14  N.  Y.  22 ;  Van 
Rensselaer  v.  Snyder,  13  N.  Y.  299;  Guild  z/.  Rogers,  8  Barb.  502. 

A  statute  providing  that  a  mortgagor  shall  not  be  liable  for  rent  after 
the  date  of  the  sale  under  the  mortgage,  if  he  remains  in  possession  and 
redeems  within  the  time  limited  by  law,  is  void  so  far  as  it  applies  to  prior 
contracts.  Greenfield  v.  Dorris,  i  Sneed,  548. 

A  law  which  releases  the  sureties  on  a  jail  bond  after  condition  broken, 
and  assignment  of  the  bond  by  the  sheriff  to  the  creditor,  is  unconstitu- 
tional. Starr  v.  Robinson,  I  Chip.  257 ;  Lewis  v.  Brackenridge,  I  Blackf. 
220. 

A  State  statute  authorizing  the  sale  of  property  free  from  a  mortgage, 
and  transferring  the  lien  thereof  to  the  proceeds,  is  valid.  Potts  z>.  New 
Jersey  Arms  and  Ordnance  Co.  17  N.  J.  Eq.  395. 

A  statute  allowing  the  proceeds  of  property  sold  free  from  incum- 
brances,  without  the  consent  of  the  mortgagee,  to  be  applied  first  to  pay 
indefinite  costs  other  than  those  of  the  sale,  is  void.  Martin  v.  Somerville 
Co.  3  Wall.  Jr.  206. 

A  statute  permitting  a  receiver  to  sell  property  free  from  incumbrances, 
without  the  consent  of  the  mortgagee,  whether  it  brings  sufficient  to  pay 
the  incumbrance  or  not,  impairs  the  obligation  of  the  mortgage.  Martin 
"V.  Somerville  Co.  3  Wall.  Jr.  206. 

If  a  mortgage  contains  a  power  in  case  of  default,  to  sell  according  to 
law,  a  statute  prescribing  a  shorter  time  for  advertising  before  sale  than 
existed  at  the  time  of  the  execution  of  the  mortgage,  is  not  repugnant  to 
the  Constitution.  The  remedy,  instead  of  being  impaired,  is  rendered  more 
speedy  and  advantageous.  James  v.  Stull,  9  Barb.  482. 

The  judicial  mortgage  resulting  from  the  inscription  of  a  judgment  is 
no  part  of  the  contract  on  which  the  judgment  is  based,  and  may  be  taken 
away  by  statute.  New  Orleans  v.  Holmes,  13  La.  Ann.  502. 


REMEDIES.  223 

The  right  to  institute  an  action  of  ejectment  upon  the  forfeiture  of  a 
mortgage  is  a  part  of  the  contract,  and  a  statute  which  prohibits  the  insti- 
tution of  such  a  suit  until  after  a  foreclosure  and  sale  of  the  property,  is 
void.  Mundy  V.  Monroe,  I  Mich.  68. 

A  statute  extending  the  time  from  twenty  days  to  six  months  before  a 
default  can  be  taken  for  want  of  an  answer,  is  valid.  Von  Baumbach  v. 
Bade,  9  Wis.  559  ;  Holloway  v.  Sherman,  12  Iowa,  282. 

A  statute  requiring  six  months  advertisement  prior  to  a  sale  under  a 
mortgage,  instead  of  six  weeks,  is  valid.  Von  Baumbach  v.  Bade,  9  Wis. 
559;  Starkweather?/.  Hawes,  10  Wis.  125. 

A  statute  diminishing  the  period  required  for  the  publication  of  a  no- 
tice of  foreclosure,  is  valid.  Webb  v.  Moore,  25  Ind.  4  ;  Hopkins  v.  Jones, 
22  Ind.  310. 

When  the  mortgagee  does  not  resort  to  the  power  to  sell,  contained  in 
the  mortgage,  but  applies  to  the  court  for  the  enforcement  of  his  mortgage, 
he  must  take  the  remedy  as  he  finds  it,  and  can  not  object  that  it  is  less 
beneficial  than  that  afforded  at  the  time  the  mortgage  was  executed.  Hey- 
ward  v.  Judd,  4  Minn.  483. 

A  law  which  provides  that  property  shall  not  be  sold  under  an  execu- 
tion or  a  decree  of  foreclosure,  unless  it  brings  two-thirds  of  its  appraised 
value,  imposes  conditions  which  will  frequently  render  a  sale  impossible, 
and  impairs  the  obligation  of  contracts.  Bronson  v.  Kinzie,  I  How.  311  ; 
Grantly  v.  Ewing,  3  How.  707;  contra,  Waldo  V.  Williams,  4  111.  264. 

Where  the  mortgage  contains  a  power  to  sell,  the  legislature  can  not 
Interfere  with  its  exercise  so  as  to  change  the  estate  which  the  trustee  is 
authorized  to  sell,  and  extend  the  time  for  redemption.  Heyward  v.  Judd, 
4  Minn.  483;  Goenen  v.  Schroeder,  8  Minn.  387  ;  Carroll,  v.  Rossiter,  10 
Minn.  174. 

A  law  which  gives  the  mortgagor  a  certain  period  in  which  to  redeem 
the  property  after  a  sale  under  the  mortgage,  confers  upon  him  an  equitable 
estate  to  which  he  was  not  entitled  under  the  contract,  and  unquestionably 
impairs  its  obligation.  Bronson  v.  Kinzie,  i  How.  311  ;  Grantly  v.  Ewing, 
3  How.  707  ;  contra,  Stone  v.  Bassett,  4  Minn.  298;  Heyward  v.  Judd,  4 
Minn.  483  ;  Freeborn  v.  Pettibone,  5  Minn  277  ;  Waldo  v.  Williams,  4  111. 
264. 

A  statute  allowing  a  creditor  to  redeem  at  any  time  within  two  years 
after  the  sale  under  a  mortgage  made  prior  to  the  passing  of  the  statute, 
is  void.  Howard  v.  Bugbee,  24  How.  461 ;  S.  C.  32  Ala.  713  ;  Malony  v. 
Fortune,  14  Iowa,  417;  Scale  v.  Mitchell,  5  Cal.  401 ;  Thorn  v.  San  Fran- 
cisco, 4  Cal.  127;  contra,  Iverson  v.  Shorter,  9  Ala.  713. 


224  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  giving  the  mortgagor  the  right  to  remain  in  possession  during 
the  time  of  redemption,  upon  paying  the  interest  and  the  taxes,  is  valid. 
Heyward  z/.  Judd,  4  Minn.  483;  Berthold  v.  Holman,  12  Minn.  335; 
Berthold  v.  Fox,  13  Minn.  501. 

A  statute  requiring  that  the  interest  shall  be  paid  in  advance  in  order  to 
enable  the  mortgagor  to  remain  in  possession  after  a  sale,  is  valid.  Stone 
v.  Bassett/  4  Minn.  298. 

The  right  to  redeem  is  no  part  of  the  contract  of  indebtedness.  It  is  a 
privilege  given  by  statute.  As  the  provision  is  only  a  matter  out  of  which 
rights  may  grow,  it  may  be  repealed  at  any  time  before  a  party  avails  him- 
self of  it.  Tuolumne  Redemption  Co.  z/.  Sedgwick,  15  Cal.  515;  contra, 
Cargill  it.  Power,  I  Mich.  369. 

Although  the  law  at  the  time  of  the  execution  of  the  mortgage  provided 
that  the  property  should  not  be  sold  for  less  than  two-thirds  of  the  ap- 
praised value,  unless  the  mortgagor  elected  to  have  it  sold  subject  to  the 
right  to  redeem,  a  statute  may  take  away  the  right  of  appraisement  and 
redemption.  Holland  v.  Dickerson,  41  Iowa,  367. 

The  right  to  redeem  property  sold  under  an  execution  pertains  solely  to 
the  remedy,  and  exists  solely  by  statute,  and  the  legislature  may  repeal  the 
statute  at  any  time  before  it  has  been  availed  of  by  the  parties  entitled. 
Tuolumne  Redemption  Co.  z/.  Sedgwick,  15  Cal.  515. 

A  State  law  allowing  a  redemption  at  any  time  within  a  certain  period 
after  a  sale  under  an  execution,  when  there  was  no  redemption  at  the  time 
of  the  making  of  the  contract,  is  void.  Oliver  v.  McClure,  28  Ark.  555; 
Scobey  v.  Gibson,  17  Ind.  572;  Inglehart  v.  Wolfin,  20  Ind.  32;  contra, 
Moore  v.  Martin,  38  Cal.  428;  Turner  v.  Watkins,  31  Ark.  429. 

Appeal. 

A  statute  granting  a  writ  of  error  or  an  appeal  to  a  party  after  the  ex- 
piration of  the  time  for  suing  out  the  writ  or  taking  the  appeal,  does  not 
impair  the  obligation  of  a  contract.  Converse  v.  Burrows,  2  Minn.  229 ; 
Davis  v.  Ballard,  I  J.  J.  Marsh.  563  ;  Braddee  v.  Brownfield,  2  W.  &  S.  271. 

A  statute  permitting  one  of  several  parties  against  whom  a  judgment 
has  been  rendered,  to  sue  out  a  writ  of  error  without  joining  his  codefend- 
ants,  does  not  impair  the  obligation  of  a  contract.  Wilder  v.  Lumpkin, 
4  Geo.  208. 

A  statute  allowing  an  appeal  to  be  taken  without  giving  security  for 
costs  does  not  impair  the  obligation  of  any  contract.  Todd  z/.  Neal,  49 
Ala.  266. 

A  statute  taking  away  the  right  of  appeal  is  not  unconstitutional. 
Grover  z/.  Coon,  I  N.  Y.  536. 


EXEMPTIONS.  225 

Xew  Trial. 

A  statute  allowing  a  new  trial  or  a  proceeding  in  the  nature  of  an  ap- 
peal after  litigation  actually  commenced,  or  even  after  judgment,  does  not 
impair  the  obligation  of  a  contract,  although  there  was  no  provision  for  a 
new  trial  or  appeal  previously.  Calder  v.  Bull,  3  Dall.  386 ;  s.  C.  2  Root, 
350  ;  Bait.  &  S.  R.  R.  Co.  v,  Nesbit,  10  How.  395;  League  v.  De  Young, 
II  How.  185;  Colby  z/.  Dennis,  36  Me.  9;  vide  Young  v.  State  Bank,  4 
Ind.  301. 

A  statute  declaring  a  judgment  void  and  granting  a  new  trial  impairs 
the  obligation  of  contracts,  and  is  void.  Weaver  z/.  Lapsley,  43  Ala.  224. 

Exemptions. 

Such  property  as  is  subject  to  execution  at  the  time  the  debt  is  con- 
tracted must  remain  subject  to  execution  until  the  debt  is  paid.  A  statute 
which  creates  an  additional  exemption  is  therefore  void  so  far  as  it  affects 
prior  contracts.  Lessley  v.  Phipps,  49  Miss.  790 ;  Alexander  v.  Kilpatrick, 
14  Fla.  450;  Jones  v.  Brandon,  48  Geo.  593  ;  Quackenbush  v.  Danks,  I 
Denio,  128;  S.  C.  3  Denio,  594;  I  N.  Y.  129;  Matthewson  v.  Weller,  3 
Denio,  52;  Homestead  Cases,  23  Gratt.  266;  Russell  v.  Randolph,  26 
Gratt.  705  ;  Cockran  v.  Darcy,  5  Rich.  N.  S.  125  ;  Ex  parte  Hewett,  5  Rich. 
N.  S.  409;  De  la  Howe  v.  Harper,  5  Rich.  N.  S.  470;  contra,  Pol  v.  Har- 
die,  65  N.  C.  447  ;  Allen  v.  Shield,  72  N.  C.  504;  Robert  v.  Coco,  25  La. 
Ann.  199  ;  Stephenson  v.  Osborne,  41  Miss.  119;  Wilson  v.  Sparks,  72  N. 
C.  208;  Garrett  v.  Cheshire,  69  N.  C.  396;  Bronson  v.  Kenzie,  I  How. 
311  ;  Rockwell  v.  Hubbell,  2  Doug.  197;  Velder  v.  Alkenbrack,  6  Barb. 
327  ;  Helfenstein  v.  Cave,  3  Iowa,  287  ;  In  re  Sarah  Kennedy,  2  Rich.  N. 
S.  116;  Howze  v.  Howze,  2  Rich.  N.  S.  229;  Sneider  v.  Heidelberger, 
45  Ala.  126;  Doughty  v.  Sheriff,  27  La.  Ann.  355. 

The  contracting  of  a  debt  does  not  in  any  legal  sense  create  a  lien  upon 
the  debtor's  property.  The  right  which  a  creditor  by  becoming  such  ac- 
quires, is  to  have  the  use  and  benefit  of  the  laws  for  the  collection  of  debts. 
If  a  subsequent  act  increases  the  exemption,  the  question  always  is  whether 
the  law  which  prevailed  when  the  contract  was  made  has  been  so  far 
changed  that  there  does  not  remain  a  substantial  and  reasonable  mode  of 
enforcing  it  in  the  ordinary  and  regular  course  of  justice.  If  it  has  not,  the 
act  is  valid  Stephenson  v.  .Osbbrne,  41  Miss.  119;  Morse  v.  Gould,  11 
N.  Y.  281  ;  Grimes  v.  Bryne,  2  Minn.  89. 

If  a  new  Constitution  deprives  the  courts  of  jurisdiction  to  sell  exempted 
property,  there  is  no  remedy  to  enforce  the  contract.  Hardeman  v.  Downer,, 
93  Geo.  425. 

No  exemption  can  be  allowed  as  against  a  mortgagee  claiming  under  a 
mortgage  made  prior  to  the  law  allowing  the  exemption.     Shelor  z/.  Mason,, 
2  Rich.  N.S.  233. 
15 


226  CONSTITUTION    OF    THE    UNITED    STATES. 

An  exemption  law  which  divests  the  lien  of  a  judgment,  and  leaves  no 
means  for  the  collection  of  the  debt,  is  unconstitutional.  Gunn  v.  Barry,  1  5 
Wall.  610;  Forsyth  v.  Marbury,  R.  M.  Charlt.  324;  Smith  v.  Morse,  2 
Cal.  524;  McKeithan  v.  Terry,  64  N.  C.  25  ;  contra,  In  re  Sarah  Kennedy, 
2  Rich.  N.  S.  116;  Hardeman  v.  Downer,  39  Geo.  425  ;  Adams  v.  Smith, 
2  Rich.  N.  S.  228. 

No  State  law  can  divest  the  lien  of  a  judgment  so  as  to  give  the  home- 
stead to  the  debtor,  even  after  he  abandons  it.  Tillotson  v.  Millard,  7  Minn. 


The  subjection  of  property  to  execution,  which  was  not  so  at  the  time 
the  contract  was  made,  does  not  in  the  slightest  degree  impair  the  obliga- 
tion of  the  contract.  It  only  extends  and  enlarges  the  remedy.  Contracts 
are  not  made  with  an  eye  to  the  laws  that  shall  enforce  them,  or  to  what 
property  shall  or  shall  not  be  liable  to  execution,  but  with  an  expectation 
of  each  party's  performing  with  good  faith  what  he  has  stipulated  to  do. 
Reardon  v.  Searcy,  2  Bibb,  202. 

A  homestead  law  is  valid,  although  it  leaves  the  debtor  no  property 
liable  to  execution.  Hill  v.  Kessler,  63  N.  C.  437. 

A  State  law  exempting  a  homestead  is  valid  if  it  is  such  as  sound  policy, 
"humanity,  and  the  well-being  of  the  community  dictate.  Cusic  v.  Douglas, 
3  Kans.  23  ;  Root  v.  McGrew,  3  Kans.  215. 

The.  legislature  may  exempt  real  estate  as  well  as  personal  property. 
Hill  v.  Kessler,  63  N.  C.  437. 

What  are  necessaries  is  a  question  for  the  legislature,  and  not  for  the 
court.  Hill  v.  Kessler,  63  N.  C.  437. 

If  the  object  of  the  law  is  not  so  much  to  secure  the  well-being  of  the 
citizens  as  to  enable  them  to  hold  large  amounts  of  property,  with  a  view 
of  making  it  available  to  their  own  aggrandizement,  the  statute  is  void. 
Cusic  v.  Douglas,  3  Kans.  23. 

A  State  can  not  enact  that  the  property  of  a  debtor  shall  not  be  taken 
to  satisfy  his  debts,  if  it  was  liable  to  such  seizure  and  appropriation  when 
the  debt?  was  incurred.  Penrose  v.  Erie  Canal  Co.  56  Penn.  46  ;  State  v. 
Bank,  I  Rich.  N.  S.  63. 

A  statute  permitting  the  declaration  of  a  homestead  is  constitutional  so 
far  as  it  affects  debts  created  after  the  passage  of  the  statute,  though  prior 
to  the  declaration  of  the  homestead,  for  the  creditors  knew,  or  are  presumed 
to  have  known,  at  the  time  they  gave  credit,  what  rights  and  privileges  the 
debtor  was  allowed  by  law,  and  to  what  property  they  must  look  for  a  sat- 
isfaction of  their  debts.  In  re  Henkel,  2  Saw.  305. 


STAY    LAWS.  227 


Stay  Laws. 

A  statute  which  grants  a  stay  of  execution  for  a  certain  period  is  un- 
constitutional. Jones  v.  Crittenden,  i  Car.  L.  Rep.  385  ;  Townsend  v. 
Townsend,  Peck,  i  ;  Grayson  v.  Lilly,  7  Mon.  6  ;  Bumgardner  v.  Circuit 
Court,  4  Mo.  50;  Baily  v.  Gentry,  i  Mo.  164  ;  Dormire  v.  Cogly,  8  Blackf. 
177;  Strong  i'.  Daniel,  5  Ind.  348;  Aycock  v.  Martin,  37  Geo.  124;  Huds- 
peth  v.  Davis,  41  Ala.  389;  Stevens  v.  Andrews,  31  Mo.  205  ;  Brown  v. 
Ward,  i  Mo.  209 ;  Barnes  v.  Barnes,  8  Jones  (N.  C.)  366  ;  Burt  v.  Williams, 
24  Ark.  91 ;  Ex  parte  Pollard,  40  Ala.  77  ;  Jacobs  v.  Smallwood,  63  N.  C. 
112;  State  v.  Carew,  1 3  Rich.  498  ;  Coffman  v.  Bank,  40  Miss.  29  ;  Seques- 
tration Cases,  30  Tex.  688 ;  Canfield  v.  Hunter,  30  Tex.  712  ;  Culbreath  -z/. 
Hunter,  30  Tex.  713  ;  Levison  v.  Norris,  30  Tex.  713  ;  Levison  z>.  Krohne, 
30  Tex.  714;  Webster  v.  Rose,  6  Heisk.  93;  Garlington  v.  Priest,  13  Fla. 
•559- 

A  law  procrastinating  the  remedy,  generally  speaking,  destroys  part  of 
the  right.  He  pays  less  who  pays  later — Minus  solvit  qui  serins  solvit. 
Any  indulgence,  therefore,  in  point  of  time  afforded  by  the  legislature  to  a 
debtor  is  a  correlative  injury  to  the  creditor  in  the  same  degree,  though  of 
a  different  nature,  as  a  correspondent  indulgence  by  a  proportional  reduction 
of  the  debt.  Johnson  v.  Duncan,  3  Mart.  531. 

A  statute  providing  for  payment  of  a  judgment  in  instalments,  and  a 
stay  of  execution  so  long  as  the  instalments  are  paid,  is  void.  Jones  V. 
McMahan,  30  Tex.  319;  Earle  -z/.  Johnson,  31  Tex.  164. 

An  act  giving  a  stay  of  execution  can  not  affect  a  judgment  rendered 
prior  to  its  passage.  Dormire  z/.  Cogly,  8  Blackf.  177. 

A  statute  allowing  of  a  stay  of  execution  for  an  indefinite  time,  upon  the 
consent  of  two-thirds  of  the  creditors,  is  void.  Bunn  v.  Gorgas,  41  Penn. 
441. 

Where  the  contract  stipulates  that  there  shall  be  no  stay  of  execution 
beyond  a  certain  limit,  the  legislature  can  not  declare  that  there  shall  be  a 
stay  beyond  that  limit.  The  debtor's  waiver  of  legal  rights  becomes  a  part 
of  the  obligation  of  his  contract,  and  the  legislature  can  no  more  impair 
that  obligation  than  it  can  annul  the  entire  contract.  Billmeyer  ru.  Evans, 
40  Penn.  324;  Lewis  v.  Lewis,  47  Penn.  127  ;  Griffith  ?/.  Thomas,  34  Leg. 
Int.  150. 

A  provision  for  a  stay  of  execution,  unless  the  plaintiff  will  take  the 
property  levied  on  at  two-thirds  of  its  appraised  value,  is  unconstitutional. 
Baily  z/.  Gentry,  i  Mo.  164. 

The  right  to  suspend  the  recovery  of  a  debt  for  one  period  implies  the 
right  of  suspending  it  for  another.  Jones  v.  Crittenden,  i  Car.  L.  Rep. 
385. 


228  CONSTITUTION    OF    THE    UNITED    STATES. 

A  statute  which  subjects  parties  in  chancery  to  a  longer  credit  than  the- 
law  allowed  when  the  contract  between  the  respective  parties  was  made  is 
unconstitutional.  January  v.  January,  7  Mon.  542  ;  Pool  v.  Young,  7  Mon. 
587. 

A  law  which  grants  a  stay  of  execution  for  a  certain  period,  upon  the 
defendant's  superseding  the  judgment  with  sureties,  does  impair  the  obli- 
gation of  contracts  made  before  its  adoption.  Blair  v.  Williams,  4  Litt. 
34 ;  Lapsley  v.  Brashears,  4  Litt.  47  ;  contra,  Farnsworth  -v.  Vance,  2, 
Cold.  108. 

A  statute  which  directs  a  stay  of  execution  for  one  year,  unless  the 
property  levied  upon  shall  bring  two-thirds  of  its  appraised  value  is  consti- 
tutional. Chadwick  v.  Moore,  8  W.  &  S.  49 ;  Thompson  v.  Buckley,  34  Leg.. 
Int.  148. 

A  statute  passed  in  the  time  of  a  civil  war,  which  enacts  that  no  civil 
process  shall  issue  or  be  enforced  against  any  person  mustered  into  the 
service  of  the  State  or  of  the  United  States  during  the  term  for  which  he  is 
engaged  in  such  service,  and  thirty  days  thereafter,  is  valid,  for  the  stay  is 
neither  indefinite  nor  unreasonable.  Breitenbach  v.  Bush,  44  Penn.  313  ; 
Coxe  z/.  Martin,  44  Penn.  322  ;  State  v.  .McGinty,  41  Miss.  435. 

A  statute  which  provides  that  all  actions  shall  stand  continued  during 
all  the  time  that  the  defendant  is  in  the  actual  military  service  of  the  United 
States,  is  valid.  McCormick  z/.  Rusch,  15  Iowa,  127. 

A  statute  suspending  all  suits  against  a  volunteer  in  the  service  of  the 
United  States,  until  his  regiment  or  company  returns  home,  is  valid.  Ed- 
mondson  v.  Ferguson,  n  Mo.  344;  Lindsey  v.  Burbridge,  n  Mo.  545. 

A  statute  exempting  all  persons  from  civil  process  while  they  are  in  the 
military  service  of  the  United  States,  or  of  the  State,  is  void,  for  the  sus- 
pension is  indefinite.  Hasbrouck  v.  Shipman,  16  Wis.  296. 

When  the  enlistment  is  for  the  war,  the  time  is  indefinite,  and  a  statute 
providing  a  stay  of  civil  process  for  that  time  is  unreasonable  and  invalid. 
Clark  v.  Martin,  49  Penn.  299  ;  S.  C.  3  Grant,  393. 

No  State  can  pass  a  law  suspending  the  right  of  any  person  engaged  in 
a  rebellion  against  the  Federal  Government  from  prosecuting  or  defending 
a  suit  during  the  continuance  of  the  rebellion.  Davis  v.  Pierse,  7  Minn.  13 ;. 
Keough  v.  McNitt,  7  Minn.  30 ;  Wilcox  v.  Davis,  7  Minn.  23  ;  Vernon  v. 
Henson,  24  Ark.  242. 

A  statute  which  suspends  all  legal  proceedings  to  obtain  or  enforce  a 
judgment  for  money  for  the  period  of  seven  months,  is  valid,  for  it  oper- 
ates on  the  courts  alone.  Johnson  v.  Higgins,  3  Met.  (Ky.)  566  ;  Barkley 
v.  Glover,  4  Met.  (Ky.)  44. 

A  statute  may  provide  that  an  execution  issued  upon  a  judgment  ob- 


LIMITATIONS.  2  29 

tained  by  confession  or  a  warrant  of  attorney,  shall  be  stayed  until  the  de- 
mand is  due,  for  it  applies  solely  to  the  remedy.  Wood  v.  Child,  20  111. 
209. 

A  law  which  merely  suspends  temporarily  proceedings  for  the  collection 
of  debts,  is  constitutional.  Grimball  v.  Ross,  T.  U.  P.  Charlt.  175. 

The  legislature  may  provide  for  a  stay  of  execution,  providing  that  the 
stay  is  not  so  great  and  unreasonable  as  to  amount  to  a  substantial  impair- 
ing of  the  obligation  of  contracts.  Huntzinger  v.  Brock,  3  Grant,  243. 

The  State  may  grant  a  stay  of  execution  upon  a  judgment  due  to  a  mu- 
nicipal corporation.  Governor  v.  Gridley,  Walk.  328. 

Limitations. 

A  statute  of  limitations  enacted  with  due  discretion,  and  allowing  a  rea- 
-sonable  time  for  the  commencement  of  suits  on  existing  demands,  is  a 
wholesome  and  useful  regulation,  and  not  within  the  prohibition  of  the 
Constitution.  Sampson  v.  Sampson,  63  Me.  328 ;  Samples  v.  Bank,  I 
Woods,  525  ;  Briscoe  v.  Anketell,  28  Miss.  361  ;  Lockhart?/.  Yeiser,  2  Bush, 
231  ;  Holcombe  v.  Tracy,  2  Minn.  241  ;  Stearns  v.  Gittings,  23  111.  387  ; 
Barkers.  Jackson,  i  Paine,  559;  Lewis  v.  Broadwell,  3  McLean,  568: 
Newland  v.  Marsh,  19  111.  376;  Smith  v.  Packard,  12  Wis.  371;  State 
•V.  Jones,  21  Md.  432  ;  Call  v.  Hagger,  8  Mass.  423  ;  Jackson  v.  Lamphire, 
3  Pet.  280;  De  Cordova  v.  Galveston,  4  Tex.  470;  Cummings  v.  Maxwell, 
45  Me.  190;  Society  v.  Wheeler,  2  Gallis.  105;  Blackford  v.  Peltier,  I 
Blackf.  36;  Miller  v.  Comm.  5  W.  &  S.  488  ;  State  v.  Bermudez,  12  La. 
352;  Smith  V.  Morrison,  39  Mass.  430;  Rexford  v.  Knight,  II  N.  Y.  308  ; 
Beal  v.  Nason,  14  Me.  344;  Bell  v.  Roberts,  13  Vt.  582  ;  Butlers.  Pal- 
mer, i  Hill,  324;  Griffin  v.  McKenzie,  7  Geo.  163;  McKenny  v.  Comp- 
ton,  1 8  Geo.  170;  Lewis  v.  Harbin,  5  B.  Mon.  564  ;  Pearce  v.  Patton,  7  B. 
Mon.  162  ;  Maltby  v.  Cooper,  Morris,  59  ;  Stephens  v.  St.  Louis  Nat'l 
Bank,  43  Mo.  385;  Stone  v.  Bennett,  13  Minn.  153. 

If  a  reasonable  time  is  not  allowed  after  the  passage  of  the  act  for  par- 
ties to  institute  proceedings  for  the  enforcement  of  existing  demands,  but 
the  act  is  permitted  to  take  effect  at  once,  thereby  depriving  them  of  all 
remedy  for  the  recovery  of  those  demands,  the  act  violates  the  Constitu- 
tion by  impairing  the  obligation  of  contracts.  Proprietors  v.  Laboree,  2 
Me.  275;  Society  v.  Wheeler,  2  Gallis.  105;  Amy  v.  Smith,  i  Litt.  326; 
Forsyth  v.  Marbury,  R.  M.  Charlt.  324;  Garrett  V  Beaumont,  24  Miss. 
377  ;  Johnson  v.  Bond,  i  Hemp.  533  ;  Robinson  v.  Magee,  9Cal.  81 ;  Auld 
v.  Butcher,  2  Kans.  135;  Pereles  v.  Watertown,  6  Biss.  79;  Berry  v. 
Ransdall,  4  Met.  (Ky.)  292  ;  Osborn  v.  Jaines,  17  Wis.  573. 

In  order  to  render  the  time  for  bringing  a  suit  unreasonable,  the  court 
must  be  able  to  say  that  no  substantial  opportunity  is  afforded  to  the  party 


230  CONSTITUTION    OF    THE    UNITED    STATES. 

affected  to  assert  his  rights  after  the  passage  of  the  law ;  that  the  unmis- 
takable purpose  and  effect  of  the  law  is  to  cut  off  the  right  of  the  party,  and 
not  merely  to  limit  the  time  in  which  he  may  begin  to  enforce  it.  Rex- 
ford  v.  Knight,  ii  N.  Y.  308. 

Whether  the  time  allowed  for  creditors  to  commence  their  actions  is  a 
reasonable  time  or  not,  is  a  question  within  the  exclusive  province  of  the 
court  and  not  of  the  legislature,  to  determine.  Pereles  v.  Watertown,  6 
Biss.  79 ;  contra,  Smith  v.  Morrison,  39  Mass.  430. 

Thirty  days  is  not  a  reasonable  time  to  allow  for  the  bringing  of  a  suit. 
Berry  -v.  Ransdall,  4  Met.  (Ky.)  292. 

An  extension  of  the  time  for  bringing  an  action  does  not  impair  the  ob- 
ligation of  a  contract.  Wardlaw  v.  Buzzard,  15  Rich.  158;  Smith  V. 
Tucker,  17  N.  J,  82 ;  Cox  v.  Berry,  13  Geo.  306 ;  Edwards  v.  McCaddon, 
20  Iowa,  520 ;  Swickard  v.  Bailey,  3  Kans.  507  ;  Winston  v.  McCormick, 
i  Ind.  56  ;  Oilman  v.  Cutts,  23  N.  H.  376;  Pleasants  v.  Rohrer,  17  Wis 
577- 

A  statute  prescribing  the  time  within  which  the  authority  to  establish  a 
lottery  may  be  exercised  is  valid.  Phalen  v.  Comm.  8  How.  163 ;  s.  C.  i 
Rob.  (Va.)  713. 

A  statute  requiring  a  new  promise  to  be  in  writing  is  valid,  if  ample 
time  is  allowed  to  enforce  the  demand  before  it  is  affected  by  the  new  rule 
of  evidence.  Briscoe  v.  Anketell,  28  Miss.  361. 

Who  Can  Kot  Object. 

If  a  law  affecting  the  remedy  impairs  the  obligation  of  a  contract,  the 
creditor  alone  can  complain  that  his  guaranteed  privileges  are  taken  from 
him  at  the  expense  of  the  Constitution  which  protects  them.  If  he  does 
not  complain,  the  debtor  can  not  set  up  the  unconstitutionally  of  an  act 
which  does  not  affect  him,  and  can  only  prejudice  his  adversary.  Small  ?/. 
Hodgen,  i  Litt.  16. 

A  purchaser  at  a  sale  under  an  execution  can  not  object  to  the  uncon- 
stitutionally of  an  act  allowing  a  redemption  of  the  property.  Iverson  v. 
Shorter,  9  Ala.  713. 

A  surety  who  has  superseded  a  judgment  under  a  stay  law  which  was 
unconstitutional  can  not  set  up  the  invalidity  of  the  statute  to  defeat  his 
liability.  Berry  v.  Haines,  2  Car.  L.  Rep.  428 ;  M'Kinney  v.  Carroll,  12 
Pet.  66 ;  S.  C.  5  Mass.  96 ;  Magruder  v,  Marshall,  i  Blackf.  333  ;  contra, 
Strong  v.  Daniel,  5  Ind.  348. 

It  is  competent  for  a  party  to  waive  the  privileges  or  benefits  secured 
by  the  Constitution,  and  if  he  does  so  by  availing  himself  of  an  act,  he  can 


DUTIES.  231 

not  afterwards  complain  that  it  is  unconstitutional,  because  he  has  no  in- 
terest affected  or  constitutional  right-  violated.  His  adversary  alone  has 
ground  of  complaint.  Hansford  v.  Barbour,  3  A.  K.  Marsh.  515;  Barnett 
v.  Barbour,  I  Litt.  396;  M'Kinney  v.  Carroll,  12  Pet.  66;  s.  C.  5  Mon. 
96  ;  Chitty  v.  Glenn,  3  Mon.  424  ;  Willard  v.  Longstreet,  2  Doug.  172. 

A  sheriff  who  has  acted  under  a  statute  can  not  set  up  its  unconstitu- 
tionally. Willard  v.  Longstreet,  2  Doug.  172. 

A  debtor  who  has  given  a  bond  to  stay  execution  can  not,  after  the  ex- 
piration of  the  stay,  raise  the  objection  that  the  law  was  unconstitutional. 
M'Kinney  v.  Carroll,  12  Pet.  66  ;  S.  C.  5  Mon.  96. 

The  sureties  to  an  improvement  bond  have  no  right  to  complain  that 
the  law  under  which  it  was  given  is  unconstitutional,  for  they  are  not 
affected  by  it.  M'Kinney  v.  Carroll,  12  Pet.  66;  s.  C.  5  Mon.  96. 

A  person  who  is  not  a  party  to  the  contract  can  not  question  the  valid- 
ity of  a  law  on  the  ground  that  it  impairs  the  contract.  Gilman  v.  Sheboy- 
gan,  2  Black,  510. 

The  party  whose  rights  are  invaded  is  the  only  one  who  can  plead  the 
nullily  of  a  law  impairing  the  obligation  of  contracts.  The  law  is  binding 
on  third  parties.  New  Orleans  C.  &  N.  Co.  v.  New  Orleans,  12  La.  Ann. 
364;  Gilman  v.  Sheboygan,  2  Black,  510. 

A  purchaser  at  a  sale  under  an  execution  can  not  object  to  the  sale  on 
the  ground  that  the  act  regulating  the  terms  of  the  sale  is  unconstitutional, 
because  it  impairs  the  obligation  of  contracts.  Rudd  v.  Schlatter,  I  Litt. 
19. 


2.  No  State  shall,  without  the  consent  of  the  Con- 
gress, lay  any  imposts  (a)  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  ex- 
ecuting its  inspection  laws  ;  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or 
exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States,  and  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  the  Congress.  No  State  shall, 
without  the  consent  of  Congress,  lay  any  duty  of 
tonnage  (6),  'keep  troops  or  ships  of  war  in  time  of 
peace,  enter  into  any  agreement  (c)  or  compact  with 
another  State,  or  with  a  foreign  power,  or  engage  in 
war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 


232  CONSTITUTION    OF    THE    UNITED    STATES. 


Duties. 

(a)  An  impost  or  duty  on  imports  is  a  custom  or  tax  levied  on  articles 
brought  into  a  country,  and  is  most  usually  secured  before  the  importer  is 
allowed  to  exercise  his  rights  of  ownership  over  them,  because  evasions  of 
the  law  can  be  prevented  more  certainly  by  executing  it  while  the  articles 
are  in  its  custody.  It  would  not,  however,  be  less  an  impost  or  duty  on 
the  articles  if  it  were  levied  on  them  after  they  were  landed.  The  policy 
and  consequent  practice  of  levying  or  securing  the  duty  before  or  on  enter- 
ing the  port  does  not  limit  the  power  to  that  'state  of  things,  nor  conse- 
quently the  prohibition,  unless  the  true  meaning  of  the  clause  so  confines 
it.  Imports  are  things  imported.  They  are  the  articles  themselves  which 
are  brought  into  the  country.  A  duty  on  imports,  then,  is  not  merely  a 
duty  on  the  act  of  importation,  but  is  a  duty  on  the  thing  imported.  Brown 
-v.  State,  12  Wheat.  419;  Bode  v.  State,  7  Gill,  326;  Hinson  v.  Lott,  8 
Wall.  128;  s.  C.  40  Ala.  123 ;  vide  State  v.  Sluby,  2  H.  &  J.  480. 

There  is  no  difference  in  principle  between  a  power  to  prohibit  the  sale 
of  an  article  and  a  power  to  prohibit  its  introduction  into  the  country. 
The  one  would  be  a  necessary  consequence  of  the  other.  No  goods  would 
be  imported  if  none  could  be  sold.  No  object  of 'any  description  can  be 
accomplished  by  laying  a  duty  on  importation,  which  may  not  be  accom- 
plished with  equal  certainty  by  laying  a  duty  on  the  thing  imported.  It  is 
obvious  that  the  same  power  which  imposes  a  light  duty  can  impose  a  veiy 
heavy  one,  one  which  amounts  to  a  prohibition.  Brown  v.  State,  12 
Wheat.  419. 
\ 

A  duty  on  imports  is  not,  taken  in  its  literal  sense,  confined  to  a  duty 

levied  while  the  article  is  entering  the  country,  but  extends  to  a.  duty  levied 
after  it  has  entered  the  country.     Brown  v.  State,  12  Wheat.  419. 

When  the  importer  has  so  acted  upon  the  thing  imported  that  it  has 
become  incorporated  and  mixed  up  with  the  mass  of  property  in  the  coun- 
try, it  has,  perhaps,  lost  its  distinctive  character  as  an  import,  and  has  be- 
come subject  to  the  taxing  power  of  the  State  ;  but  while  remaining  the 
property  of  the  importer  in  his  warehouse  in  the  original  form  or  package 
in  which  it  was  imported,  a  tax  upon  it  is  a  duty  on  imports.  Brown  v. 
State,  12  Wheat.  419  ;  Wynne  v.  Wright,  4  Dev.  &  Bat.  19  ;  License  Cases, 
5  How.  504;  S.  C.  13  N.  H.  536;  State  v.  Charleston,  10  Rich.  240  ;  State 
v.  Shapleigh,  27  Mo.  344  ;  State  v.  North,  27  Mo.  464;  Low  v.  Austin,  13 
Wall.  29. 

This  rule  seems  to  have  been  suggested  from  that  familiar  principle, 
that  if  one  mingle  his  money  with  another's  so  that  the  proportion  can  not 
be  distinguished  in  the  mass,  the  other  shall  have  the  whole.  In  some 
States  and  respecting  some  articles,  this  rule  might  operate  with  justness 
.and  propriety,  but  by  far  the  greater  proportion  of  foreign  commodities, 


DUTIES.  233 

&nd  those  from  other  States,  are  never  mixed  with  the  mass  of  property, 
so  as  to  lose  their  identity.     Raguet  v.  Wade,  4  Ohio,  107. 

If  an  importer  breaks  up  his  packages  and  travels  with  them  as  an  itin- 
erant peddler,  or  applies  them  to  his  own  private  use,  they  become  incor- 
porated with  the  general  mass  of  property,  and  are  liable  to  taxation. 
Brown  v.  State,  12  Wheat.  419. 

After  imported  goods  have  become  incorporated  and  mixed  up  with 
the  mass  of  property  in  the  country,  a  tax  may  constitutionally  be  imposed 
upon  them,  although  they  are  taxed  by  the  name  of  goods  imported,  or 
not  of  the  production  of  the  State,  for  a  State  may  exercise  its  discretion 
in  selecting  the  objects  of  taxation  amongst  those  which  are  subject  to 
taxation.  Wynne  v.  Wright,  4  Dev.  &  Bat.  19;  Biddies.  Comm.  13  S. 
&  R.  405  ;  Cowles  v.  Brittain,  2  Hawks,  204;  Cummings  v  Savannah,  R. 
M.  Charlt.  26  ;  People  v.  Coleman,  4  Cal.  46 ;  Tracey  v.  State",  3  Mo.  3 ; 
contra,  State  v.  North,  27  Mo.  464. 

An  import  ceases  in  the  constitutional  sense  to  be  an  import,  the  mo- 
ment the  importer  becomes^a  vender,  and  sells  the  article.  In  the  hands 
of  the  retailer  or  distributor,  it  is  an  article  of  the  internal  trade  and  com- 
merce of  the  State.  State  v.  Peckham,  3  R.  I.  289. 

After  the  imported  goods  have  become  incorporated  with  the  general 
mass  of  property  in  the  State,  the  State  in  laying  taxes  may  discriminate 
against  them  in  favor  of  domestic  productions,  and  impose  a  higher  tax  on 
the  former.  Davis  v.  Dashiel,  Phillips,  114. 

If  a  State  singles  out  imports  as  a  special  object  for  any  impost  or 
duty,  it  is  unlawful,  whether  the  imported  goods  remain  with  the  original 
consignee  or  pass  through  the  hands  of  any  number  of  purchasers.  Peo- 
ple v.  Moring,  47  Barb.  642 ;  S.  C.  3  Abb.  App.  539. 

While  goods  retain  their  character  as  imports,  a  tax  upon  them  in  any 
shape  by  a  State,  is  within  the  constitutional  prohibition,  although  the  tax 
is  the  same  as  on  any  other  property  in  the  State.  Low  v.  Austin,  13 

Wall.  29. 

The  term  "  import,"  is  used  in  the  fiscal  sense  in  the  Constitution,  and 
in  that  acceptation  is  wholly  inapplicable  to  the  interchange  of  commodi- 
ties among  the  States,  but  is  restricted  in  its  meaning,  to  such  commodities 
only  as  are  imported  from  abroad,  introduced  into  the  country  through  its 
several  ports  of  entry,  and  are  subject  to  the  the  taxing  power  of  the  Fed- 
eral Government.  A  State  tax  on  articles  brought  from  another  State,  is 
not  a  tax  on  imports.  License  Cases,  5  How.  504;  S.  C.  13  N.  H.  536;  State 
v.  Pinckney,  10  Rich.  474;  State  v.  Charleston,  10  Rich.  240;  Hinson  v. 
Lott,  8  Wall.  148 ;  S.  C.  40  Ala.  123  ;  Woodruff  v.  Parham,  41  Ala.  334  ; 
S.  C.  8  Wall.  123;  State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284; 
Harrison  v.  Mayor,  n  Miss.  581  ;  Board  v.  Pleasants,  23  La.  Ann.  349. 


234  CONSTITUTION    OF    THE    UNITED    STATES. 

The  power  of  imposing  or  levying  duties  on  imports  is  a  branch  of  the 
taxing  power.  This  prohibition  is  an  exception  from  the  acknowledged 
power  of  the  States  to  levy  taxes.  Gibbons  v.  Ogden,  9  Wheat.  I  ;  s.  C. 
17  Johns.  488.;  4  Johns.  Ch.  150. 

The  term  "  imports,"  means  not  only  the  act  of  importation,  but  the 
articles  imported.  Wynne  v.  Wright,  4  Dev.  &  Bat.  19. 

If  Congress  has  not  established  a  port  of  entry  within  a  State,  for  the 
introduction  of  foreign  imports,  the  State  can  not  pass  an  act  that  would  be 
repugnant  to  this  provision  of  the  Constitution.  Beall  v.  State,  4  Blackf.  107. 

The  prohibition  is  general,  and  not  confined  to  a  particular  mode.  A 
tax  on  the  sale  of  an  article  imported  only  for  sale  is  a  tax  on  the  article 
itself.  A  tax  on  the  occupation  of  an  importer  is  a  tax  on  importation.  It 
must  add  to  the  price  of  the  article,  and  be  paid  by  the  consumer  or  by 
the  importer  himself  in  like  manner  as  a  direct  duty  on  the  article  itself. 
This  the  State  has  no  right  to  do.  State  v.  North,  27  Mo.  464 ;  Brown  v. 
State,  12  Wheat.  419;  License  Cases,  5  How.  504;  s.  C.  13  N.  H.  536; 
vide  Biddle  v.  Comm.  13  S.  &  R.  405. 

Pilot  fees  or  penalties  are  not  embraced  within  the  words  imposts  or 
duties  on  imports,  exports  or  tonnage.  This  provision  was  intended  to 
operate  upon  subjects  actually  existing,  and  well  understood  when  the  Con- 
stitution was  formed.  Imposts  and  duties  on  imports,  exports  and  tonnage 
were  then  known  to  the  commerce  of  a  civilized  world  as  distinct  from  fees 
and  charges  for  pilotage,  and  from  the  penalties  by  which  commercial 
States  enforced  their  pilot  laws,  as  they  were  from  charges  for  wharfage 
or  towage  or  any  other  local  port  charges  for  services  rendered  to  vessels 
or  cargoes.  It  can  not  be  denied  that  a  tonnage  duty  or  an  impost  on  im- 
ports or  exports  may  be  levied  under  the  name  of  pilot  dues  or  penalties, 
and  it  is  the  thing  and  not  the  name  which  is  to  be  cpnsidered.  Cooley  ?'. 
Philadelphia,  12  How.  299. 

A  State  may  impose  a  tax  upon  its  citizens  in  proportion  to  the  amount 
they  are  respectively  worth,  and  the  importing  merchant  is  liable  to  this 
assessment  like  any  other  citizen,  and  is  chargeable  according  to  the 
amount  of  his  property,  whether  it  consist  of  money  engaged  in  trade  or 
of  imported  goods  which  he  proposes  to  sell,  or  any  other  property  of 
which  he  is  owner.  License  Cases,  5  How.  504;  s.  c.  13  N.  H.  536;  State 
v.  Pinckney,  10  Rich.  474. 

By  payment  of  the  duty  the  importer  purchases  the  right  to  dispose  of 
his  merchandise  as  well  as  bring  it  into  the  country.  Brown  v.  State,  12 
Wheat.  419;  Hinson  v.  Lott,  8  Wall.  148  ;  S.  c.  40  Ala.  123. 

A  tax  on  water  craft  in  which  goods  are  sold  by  retail  is  valid,  although 
the  goods  are  brought  from  another  State  by  a  citizen  of  that  State.  When 
such  a  citizen  comes  into  the  State  and  makes  sales,  there  is  no  reason  why 


DUTIES.  235 

he  should  be  exempted  from  the  operation  of  its  laws.    Harrison  V.  Mayor, 
ii  Miss.  581. 

A  State  may  impose  a  penalty  upon  those  who  sell  articles  which  are 
not  of  the  product  of  the  United  States  without  a  license.  Beall  v.  State, 
4  Blackf.  107 ;  Raguet  v.  Wade,  4  Ohio,  107  ;  People  v.  Coleman,  4  Cal.  46. 

A  statute  requiring  a  license  of  retail  dealers  of  spirituous  liquors  is 
constitutional.  The  regulation  and  superintendence  of  the  houses  and 
places  where  spirituous  liquors  are  sold  is  an  important  subject  of  internal 
police,  and  is  within  the  jurisdiction  of  the  State  government.  State  V. 
Peckham,  3  R.  I.  289  ;  Perdue  v.  Ellis,  18  Geo.  586;  State  v.  Wheeler,  25. 
Conn.  290 ;  Comm.  v.  Kimball,  41  Mass.  359 ;  Ingersoll  v.  Skinner,  I 
Denio,  540;  Jones  v.  People,  14  111.  196;  Smith  v.  People,  I  Parker  Cr. 
Cas.  583;  Comm.  v.  Clapp,  71  Mass.  97  ;  License  Cases,  5  How.  504; 
S.  C.  13  N.  H.  536;  City  v.  Ahrens,  4  Strobh.  241  ;  State  v.  Moore,  14  N. 
H.  451 ;  Keller  v.  State,  n  Md.  525 ;  Santo  v.  State,  2  Iowa,  165  ;  State  v. 
Donehey,  8  Iowa,  396. 

A  tax  on  legacies  when  the  legatee  is  neither  a  citizen  of  the  United 
States  nor  domiciled  in  that  State  is  valid.  It  has  no  concern  with  com- 
merce or  with  imports  or.exports.  The  mere  fact  that  the  owner  intends 
to  'convert  his  property  into  money  and  send  it  abroad,  does  not  relieve  it 
from  taxation  Mager  v.  Grima,  8  How.  490. 

A  tax  on  auction  sales  of  imported  goods  is  a  duty  on  imports,  and  in- 
valid. People  v.  Moring,  3  Abb.  App.  539;  S.  C.  47  Barb.  642. 

A  tax  or  duty  on  a  bill  of  lading,  although  differing  in  form  from  a  duty 
on  the  article  shipped,  is  in  substance  the  same  thing ;  for  a  bill  of  lading, 
or  some  written  instrument  of  the  same  import  is  necessarily  always  asso- 
ciated with  every  shipment  of  articles  of  commerce  from  the  ports  of  one 
country  to  those  of  another.  A  tax  on  a  bill  of  lading  for  articles  exported 
is  therefore  void,  as  a  tax  on  exports.  Almy  v.  People,  24  How.  169;  Bru- 
magim  v.  Tillinghast,  18  Cal.  265. 

A  State  may  tax  capital,  although  it  is  continuously  invested  in  cotton 
purchased  for  exportation.  Peoples.  Tax  Commissioner,  17  N.  Y.  Supr. 

255. 

A  State  law  requiring  hawkers  and  peddlers  to  take  out  a  license  is  not 
a  duty  on  imports.  Comm.  v.  Ober,  66  Mass.  493. 

A  provision  in  the  charter  of  a  railroad  corporation  that  all  tonnage  car- 
ried on  the  railroad  shall  be  subject  to  a  certain  toll  or  duty  per  mile,  is  not 
a  duty  on  imports  or  exports.  Penn.  R.  R.  Co.  v.  Comm.  3  Grant,  128. 

A  State  law  imposing  a  transit  duty  on  foreign  corporations  for  all 
goods  and  persons  carried  or  transported  in  the  State,  is  not  a  tax  on  im- 
ports or  exports.  State  v.  Del.  L.  &  W.  R.  R.  Co.  30  N.  J.  4735  S.  C.  31 
N.J.  531. 


236  CONSTITUTION    OF    THE    UNITED    STATES. 

A  tax  upon  the  gross  receipts  of  an  express  company  engaged  in  carry- 
ing articles  between  States  is  valid.  Southern  Express  Co.  v.  Hood,  15 
Rich.  66. 

A  stamp  tax  on  foreign  bills  of  exchange  drawn  in  the  State,  is  not  an 
impost  or  tax  on  exports.  Ex  parte  James  P.  Martin,  7  Nev.  140. 

A  tax  upon  the  gross  sales  of  a  party  who  purchases  articles  in  their 
original  packages  from  the  importer,  is  not  a  tax  on  imports.  Waring  v. 
Mayor,  8  Wall,  no;  S.  C.  4  Ala.  139. 

A  tax  upon  a  broker's  sales  of  imported  merchandise,  which  has  not 
become  incorporated  with  the  property  of  the  State,  is  void.  People  2/. 
Moring,  3  Abb.  App.  539;  S.  C.  47  Barb.  642. 

A  State  law  requiring  a  license  from  non-resident  traders  to  vend  for- 
eign merchandise,  is  not  a  tax  on  imports  or  exports.  Sears  z>.  Commis- 
sioners, 36  Ind.  267. 

A  State  may  impose  a  higher  tax  on  articles  bought  from  non-residents 
than  on  those  bought  from  manufacturers  who  reside  in  the  State.  Davis 
v.  Dashiel,  Phillips,  114. 

A  tax  on  sales  is  a  tax  on  the  proceeds,  and  not  a  tax  on  the  imports. 
State  v.  Pinckney,  18  Rich.  474. 

The  removal  01  destruction  of  infectious  or  unsound  articles  is  an  exer- 
cise of  the  power  of  inspection,  and  forms  an  express  exception  to  the  pro- 
hibition. Brown  v.  State,  12  Wheat.  419. 

A  State  has  a  right  to  lay  a  tax  upon  imports,  the  object  of  which  is  to 
pay  for  services  performed  in  inspecting  the  articles,  if  the  law  is  passed  in 
good  faith,  and  is  not  resorted  to  as  a  means  of  indirectly  raising  revenue. 
Green  v.  State,  R.  M.  Charlt.  368. 

The  power  to  pass  inspection  laws  involves  the  power  to.  enforce  such 
laws  by  adequate  provisions  for  the  remuneration  of  the  officers  charged 
with  the  duty  of  inspection.  Such  fees  are  not  imposts.  Addison  z/. 
Saulnier,  19  Cal.  82. 

Inspection  laws  may  apply  to  imported  articles  as  well  as  to  those  in- 
tended for  exportation.  Neilson  v.  Garza,  2  Woods,  287. 

Whether  the  fee  allowed  by  a  State  law  is  excessive  or  not  is  a  question 
that  can  only  be  determined  by  Congress.  Neilson  v.  Garza,  2  Woods, 
287. 

The  object  of  this  prohibition  is  to  protect  both  the  vessel  and  cargo 
from  State  taxation  while  in  transitu,  and  this  prohibition  can  not  be 
evaded  and  the  same  result  effected  by  calling  it  a  tax  on  the  passengers 
or  the  master.  Passenger  Cases,  7  How.  283  ;  S.  C.  45  Mass.  282 ;  People 
v.  Downer,  7  Cal.  169;  contra,  In  re  Crandall,  I  Nev.  294. 


TONNAGE.  237 

Tonnage. 

(b)  A  duty  of  tonnage  signifies  a  tax,  custom  or  toll.  Sheffield  v.  Par- 
sons, 3  Stew.  &  Port.  302. 

A  duty  of  tonnage,  in  the  most  obvious  sense  of  the  term,  imports  a 
tax  or  duty  proportioned  to  the  tonnage  or  size  of  the  vessel.  Johnson  v. 
Drummond,  20  Gratt.  419;  Inman  Steamship  Co.  v.  Tinker,  94  U.  S.  238. 

It  is  not  only  a  pro  rata  tax  which  is  prohibited,  but  any  duty  on  the 
ship,  whether  a  fixed  sum  upon  its  whole  tonnage,  or  a  sum  to  be  ascer- 
tained by  comparing  the  amount  of  tonnage  with  the  rate  of  duty. 
Steamship  Co.  v.  Port  Wardens,  6  Wall.  31. 

A  duty  or  tax,  or  burden,  imposed  under  the  authority  of  the  State, 
which  is  by  the  law  imposing  it  to  be  measured  by  the  capacity  of  the  ves- 
sel, and  is  in  its  essence  a  contribution  claimed  for  the  privilege  of  arriving 
and  departing  from  a  port  of  the  United  States,  is  within  the  prohibition. 
Tobin  v.  Vicksburg,  4  Cent.  L.  J.  280 ;  Cannon  v.  New  Orleans,  20  Wall. 
577  ;  S.  C.  27  La.  Ann.  16. 

Taxes  levied  by  a  State  upon  ships  and  vessels  as  instruments  of  com- 
merce are  within  the  prohibition,  and  it  makes  no  difference  whether  the 
ships  or  vessels  taxed  belong  to  the  citizens  of  the  State  which  levies  the 
tax,  or  the  citizens  of  another  State.  State  Tonnage  Tax  Cases,  12  Wall. 
204;  S.  C.  3  Grant,  128. 

The  privilege  extends  to  all  vessels  entitled  to  the  privileges  of  vessels 
employed  in  the  coasting  trade,  whether  employed  in  commercial  inter- 
course between  ports  in  different  States  or  between  different  ports  in  the 
same  State.  State  Tonnage  Tax  Cases,  12  Wall.  204 ;  S.  C.  3  Grant,  128. 

A  tonnage  tax  is  a  means  prohibited  to  the  States,  and  can  not  be  em- 
ployed as  a  means  of  enforcing  some  law  which  is  within  their  constitu- 
tional authority.  Johnson  v.  Drummond,  20  Gratt.  419. 

The  mere  fact  that  a  tax  does  not  go  into  the  public  coffers  does  not 
prevent  its  being  a  duty  of  tonnage.  What  is  done  with  the  money  can 
not  affect  the  question.  Alexander  v.  Railroad  Co.  3  Strobh.  594 ;  Sheffield 
v.  Parsons,  3  Stew.  &  Port.  302. 

It  is  immaterial  what  form  of  expression  is  used  in  describing  the  tax 
or  the  object  or  subject,  if,  upon  looking  at  its  real  character  and  effect,  it 
is  found  to  come  within  the  meaning  of  a  duty  of  tonnage.  Thus  the  tax,, 
instead  of  being  called  a  tax  on  the  vessel,  may  be  called  a  tax  upon  the 
master  or  cargo ;  it  may  purport  to  be  a  tax  upon  some  privilege  to  be  en- 
joyed by  the  vessel,  as  the  privilege  of  coming  into  a  certain  port  or  of  rid- 
ing at  a  particular  anchorage,  or  of  being  served  as  she  may  have  occasion 
by  the  wardens  of  a  port,  or  the  privilege  of  engaging  in  a  particular  trade, 
as  the  trade  in  wood,  or  corn,  or  oysters ;  yet,  if  really  and  substantially  it 
is  a  duty  of  tonnage,  it  is  equally  within  the  prohibition  as  if  the  tax  had 
been  called  by  its  right  name.  Johnson  v.  Drummond,  20  Gratt.  419. 


238  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  law  imposing  half  pilotage  fees  on  vessels  refusing  to  receive 
a  pilot  is  not  a  duty,  impost  or  excise.  Cooley  v.  Philadelphia,  12  How. 
299. 

A  charge  for  services  rendered,  or  conveniences  provided,  is  in  no  sense 
a  tax  or  duty.  It  is  not  a  hindrance  or  impediment  to  free  navigation. 
The  prohibition  is  designed  to  guard  against  local  hindrances  to  trade  and 
carriage  by  vessels,  not  to  relieve  them  from  liability  to  claims  for  assist- 
ance rendered  and  facilities  furnished  for  trade  and  commerce.  It  is  a  tax 
or  duty  that  is  prohibited,  something  imposed  by  virtue  of  sovereignty,  not 
claimed  in  the  right  of  proprietorship.  K.  N.  P.  Co.  v.  Keokuk,  10  C.  L. 
N.  91  ;  s.  c.  5  Cent.  L.  J.  504. 

A  charge  for  wharfage  is  not  a  tax  or  duty.  It  is  an  assertion,. not  of 
sovereignty,  but  of  a  right  of  property.  K.  N.  P.  Co.  v.  Keokuk,  10  C.  L. 
N.  91  ;  S.  C.  5  Cent.  L.  J.  504 ;  Cannon  v.  New  Orleans,  20  Wall.  577 ; 
s.  C.  27  La.  Ann.  16. 

The  character  of  the  service  is  the  same  whether  the  wharf  is  built  and 
offered  for  use  by  a  State,  a  municipal  corporation,  or  a  private  individual. 
K.  N.  P.  Co.  v.  Keokuk,  10  C.  L.  N.  91  ;  S.  C.  5  Cent.  L.  J.  504;  Cannon 
v.  New  Orleans,  20  Wall.  577  ;  S.  C.  27  La.  Ann.  16. 

The  State  may  regulate  the  compensation  for  wharfage,  so  as  to  pre- 
vent extortion.  Cannon  v.  New  Orleans,  20  Wall.  577 ;  s.  C.  27  La.  Ann. 
16. 

A  statute  regulating  dues  for  wharfage  is  not  a  statute  imposing 
tonnage  duties.  The  owners  of  the  shores  of  navigable  waters  may,  at 
considerable  expense,  make  them  convenient  and  useful  for  the  masters  of 
vessels,  and  the  right  to  compensation  results  from  the  use  of  those  conven- 
iences. Sterrett  v.  Houston,  14  Tex.  153  ;  Municipality  v.  Pease,  2  La.  Ann. 
538  ;  The  Ann  Ryan,  7  Ben.  20. 

A  tax  which  is  by  its  terms  due  from  all  vessels  arriving  and  stopping 
in  a  port,  without  regard  to  the  place  where  they  may  stop,  whether  it  be  in 
the  channel  of  the  stream  or  out  in  the  bay,  or  landed  at  a  natural  river 
bank,  can  not  be  treated  as  compensation  for  the  use  of  a  wharf.  Cannon 
v.  New  Orleans,  20  Wall.  577  ;  s.  C.  27  La.  Ann.  16. 

When  a  city  or  other  municipality  is  the  owner  of  wharves  or  piers 
built  by  its  own  money,  to  assist  vessels  landing  within  its  limits,  in  the 
pursuit  of  their  business,  it  may  exact  and  receive  a  reasonable  compensa- 
tion for  the  use  thereof,  the  same  as  individuals.  Cannon  v.  New  Orleans, 
20  Wall.  577;  s.  C.  27  La.  Ann.  16;  Worsley  v.  Municipality,  9  Rob.  324. 

Neither  a  State  nor  a  municipal  corporation  can  be  permitted  to  impose 
a  tax  on  tonnage  under  cover  of  laws  ostensibly  passed  to  collect  wharf- 
age. K.  N.  P.  Co.  v.  Keokuk,  10  C.  L.  N.  91. 


TONNAGE.  239 

The  prohibition  was  intended  to  protect  the  freedom  of  commerce,  and 
nothing  more,  and  should  be  so  construed  as  to  carry  out  that  intent.  K. 
N.  P.  Co.  v.  Keokuk,  10  C.  L.  N.  91. 

If  a  municipal  corporation  improves  a  wharf  on  part  of  the  water  front, 
it  may  impose  a  reasonable  wharfage  for  the  use  thereof,  although  it  is 
graduated  according  to  the  tonnage  of  the  vessel.  N.  W.  Union  Packet 
Co.  v.  St.  Louis,  4  Cent.  L.  J.  58  ;  Keokuk  v.  Packet  Co.  4  Cent.  L.  J. 
276;  S.  C.  10  C.  L.  N.  91 ;  5  Cent.  L.  J.  504. 

An  ordinance  regulating  the  charges  for  wharfage,  may  be  enforced, 
unless  the  defendant  pleads  and  proves  that  they  are  beyond  the  limits  of 
just  compensation.  Keokuk  v.  Packet  Co.  4  Cent.  L.  J.  276. 

A  statute  authorizing  the  collection  of  wharfage  from  vessels  landing 
articles  other  than  the  production  of  the  State,  at  any  public  wharf,  is  un- 
constitutional. Wharf  Case,  3  Bland,  361. 

A  statute  allowing  fees  to  a  harbor  master  for  assigning  a  vessel  to  a 
berth  at  a  wharf,  is  not  a  tonnage  duty,  although  the  fees  are  ascertained 
by  the  burden  or  tonnage.  State  v.  Charleston,  4  Rich.  286 ;  Benedict  v. 
Vanderbilt,  I  Robt.  194;  Port  Wardens  v.  The  Martha  J.  Ward,  14  La. 
Ann  289;  Masters/.  Prats,  10  Rob.  459. 

A  State  law  requiring  every  vessel  to  pay  a  certain  fee  to  the  port 
warden  or  harbor  master,  whether  he  renders  any  services  or  not.  is  a  duty 
on  tonnage.  Steamship  Co.  v.  Port  Wardens,  6  Wall.  31;  Sheffield  v. 
Parsons,  3  Stew.  &  Port.  302  ;  Hackley  v.  Geraghty,  34  N.  J.  332  ;  Alex- 
ander v.  Railroad  Co.  3  Strofjh.  594  ;  Inman  Steamship  Co.  v.  Tinker,  94 
U.  S.  238;  contra,  Port  Wardens  v.  The  Charles  Morgan,  14  La.  Ann. 
595  ;  Port  Wardens  v.  The  Martha  J.  Ward,  14  La.  Ann.  289  ;  City  v.  The 
Nautilus,  8  I.  R.  R.  91. 

A  toll  or  duty  on  all  tonnage  carried  on  a  railroad,  at  a  certain  rate  per 
mile,  is  not  a  duty  of  tonnage.  Penn.  Railroad  Co.  v.  Comm.  3  Grant, 
128. 

A  municipal  ordinance  which  imposes  a  charge  on  a  vessel,  to  be  regu- 
lated according  to  the  tonnage,  for  arriving  at  and  departing  from  a  port, 
and  not  merely  for  the  use  of  the  wharf,  is  void.  Northwestern  U.  P.  Co. 
•v.  St.  Paul,  3  Dillon,  454;  S.  C.  7  C.  L.  N.  331. 

A  toll  to  be  applied  to  pay  for  improvements  made  upon  a  navigable 
river,  is  not  in  the  nature  of  a  tonnage  duty  or  any  duty  at  all,  upon  the 
vessel,  within  the  meaning  of  the  Constitution,  any  more  than  a  toll  at  a 
turnpike  gate  is  a  duty  upon  the  carriage.  It  is  a  compensation  exacted 
for  a  privilege  conferred,  and  in  proportion  to  it.  It  is  no  more  a  tonnage 
duty  than  laws  regulating  wharfage  or  port  charges.  Thames  Bank  v. 
Lovell,  1 8  Conn.  500. 


240  CONSTITUTION    OF    THE    UNITED    STATES. 

A  State  can  not  lay  a  tonnage  duty  on  vessels  employed  as  lighters  for 
other  vessels  engaged  in  foreign  commerce,  although  they  ply  exclusively 
within  the  waters  of  the  State.  Lott  v.  Morgan,  41  Ala.  246. 

A  statute  requiring  vessels  carrying  oysters  taken  in  the  State,  to  take 
out  a  license  and  pay  therefor  a  tax  of  a  certain  amount  for  every  ton  that 
the  vessel  may  measure,  imposes  a  duty  of  tonnage,  and  is  void.  Johnson 
v.  Drummond,  20  Gratt.  419. 

A  State  law  requiring  a  vessel  to  pay  a  fee  to  a  pilot  for  inspection,  is 
valid.  Baker  v.  Wise,  1 6  Gratt.  139. 

A  State  can  not  impose  a  duty  of  tonnage  for  the  purpose  of  raising  a 
revenue  in  order  to  defray  the  expenses  of  its  quarantine  regulations. 
Peete  v.  Morgan,  19  Wall.  581. 

A  State  may  tax  a  vessel  owned  by  a  citizen  of  the  State,  and  engaged 
wholly  and  entirely  in  plying  on  waters  exclusively  within  the  State,  al- 
though it  is  registered  and  enrolled  by  the  United  States.  Lott  v.  Mobile 
Trade  Co.  42  Ala.  578; 'Lott  v.  Cox,  43  Ala.  697. 

A  tax  upon  a  vessel  according  to  her  valuation  as  property,  and  as  part 
of  the  taxable  property  of  the  place  where  she  is  owned  and  registered,  is 
not  a  duty  of  tonnage.  The  North  Cape,  6  Biss.  505  ;  State  Tonnage  Tax 
Cases,  12  Wall.  204;  s.  C.  3  Grant,  128;  Perry  v.  Torrance,  8  Ohio,  521  ; 
State  v.  Charleston,  4  Rich.  286 ;  Battle  v.  Corporation,  9  Ala.  234. 

A  tax  levied  on  a  vessel  wholly  irrespective  of  its  value  as  property,  and 
solely  and  exclusively  on  the  basis  of  its  tonnage,  is  a  duty  of  tonnage. 
State  Tonnage  Tax  Cases,  12  Wall.  204;  s.  C.  3  Grant,  128. 

Agreement. 

(c)  The  words  "agreement  "  and  "  compact  "  can  not  be  construed  as 
synonymous  with  one  another,  and  still  less  can  either  of  them  be  held  to 
mean  the  same  thing  with  the  word  "  treaty  "  in  the  preceding  clause,  into 
which  the  States  are  positively  and  unconditionally  forbidden  to  enter,  and 
which  even  the  consent  of  Congress  can  not  authorize.  The  words  "  agree- 
ment "  and  "  compact ''  evidently  mean  something  more  than  the  word 
"  treaty,"  and  were  designed  to  make  the  prohibition  more  comprehensive. 
The  word  "  agreement "  does  not  necessarily  import  any  direct  and  ex- 
press stipulation,  nor  is  it  necessary  that  it  should  be  in  writing.  If  there 
is  a  verbal  understanding  to  which  both  parties  have  assented,  and  upon 
which  both  are  acting,  it  is  an  "  agreement."  The  use  of  all  these  terms, 
"  treaty,"  "agreement,"  "  compact,"  show  that  it  was  the  intention  of  the 
framers  of  the  Constitution,  to  use  the  broadest  and  most  comprehensive 
terms,  and  that  they  anxiously  desired  to  cut  off  all  connection  or  commu- 
nication between  a  State  and  a  foreign  power.  The  word  "  agreement  " 


AGREEMENT    BETWEEN    STATES.  241 

should  therefore  receive  its  most  extended  signification,  and  be  so  applied  as 
to  prohibit  every  agreement,  written  or  verbal,  formal  or  informal,  positive 
or  implied  by  the  mutual  understanding  of  the  parties.  The  prohibition 
applies  not  only  to  a  continuing  agreement,  embracing  classes  of  cases  or 
a  succession  of  cases,  but  to  any  agreement  whatever.  Holmes  v.  Jenni- 
son,  14  Pet.  540. 

No  State  can  enter  into  an  agreement  with  a  foreign  power  in  regard  to 
the  surrender  of  fugitives  from  justice.  Holmes  v.-  Jennison,  14  Pet.  540. 

Agreement  between  States. 

This  provision  is  obviously  intended  to  guard  the  rights  and  interests 
of  the  other  States,  and  to  prevent  any  compact  and  agreement  between 
any  two  States  which  may  affect  the  interests  of  the  others  injuriously.  The 
right  and  the  duty  to  protect  these  interests  is  vested  in  the  General  Gov- 
ernment. Florida  v.  Georgia,  17  How.  478. 

This  prohibition  only  applies  to  such  an  agreement  or  compact  as  is 
in  its  nature  political,  or  more  properly,  perhaps,  such  as  may  in  any  wise 
conflict  with  the  powers  which  the  States,  by  the  adoption  of  the  Constitu- 
tion, have  delegated  to  the  General  Government.  This  appears  from  the 
context,  and  from  the  reason  and  spirit  of  the  prohibition.  Union  Railroad 
Co.  v.  East.  Tenn.  Railroad  Co.  14  Geo.  327. 

Two  States  may,  by  separate  acts,  authorize  a  corporation  to  erect  a 
bridge  over  a  navigable  river  flowing  between  them.  If  the  charters  are 
granted  to  different  corporations  with  power  to  unite,  their  agreement  so 
to  do  would  not  be  an  agreement  or  compact  between  the  States.  Dover 
v.  Portsmouth  Bridge,  17  N.  H.  200. 

A  question  of  boundary  between  States  is,  in  its  nature,  a  political 
question  to  be  settled  by;  compact  made  by  the  political  departments  of  the 
government.  Florida  z/.  Georgia,  17  How.  478. 

It  is  not  necessary  that  the  consent  of  Congress  to  an  agreement  be- 
tween the  States  shall  be  given  in  the  form  of  an  express  and  formal  state- 
ment of  every  proposition  of  the  agreement  and  of  its  consent  thereto.  Vir- 
ginia v.  West  Virginia,  1 1  Wall.  39. 

The  Constitution  makes  no  provision  respecting  the  mode  or  form  in 
which  the  consent  of  Congress  is  to  be  signified,  very  properly  leaving  that 
matter  to  the  wisdom  of  that  body  to  be  decided  upon  according  to  the  or- 
dinary rules  of  law  and  right  reason.  The  only  question  in  cases  which  in- 
volve that  point  is,  has  Congress,  by  some  positive  act  in  relation  to  such 
agreement,  signified  the  consent  of  that  body  to  its  validity  ?  Green  V. 
Biddle,  8  Wheat.  I ;  Canal  Co.  v.  Railroad  Co.  4  G.  &  J.  i. 

A  compact  between  States  is  binding  upon  the  legislatures  of  those 
States.     Green  v.  Biddle,  8  Wheat,  i. 
16 


242  CONSTITUTION    OF    THE    UNITED    STATES. 

A  compact  between  two  States  can  not  operate  as  a  restriction  upon 
the  powers  of  Congress  under  the  Constitution.  State  v.  Wheeling  Bridge 
Co.  1 8  How.  421  ;  Wilson  v.  Mason,  I  Cranch,  45. 


ARTICLE  II. 

SECTION  I. 

i.  The  executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.  He  shall  hold 
his  office  during  the  term  of  four  years,  and,  together 
with  the  Vice-president,  chosen  for  the  same  term,  be 
elected  as  follows  : 

The  theory  of  the  Constitution  is  that  the  great  powers  of  the  govern- 
ment are  divided  into  separate  departments,  and  so  far  as  these  powers  are 
derived  from  the  Constitution,  the  departments  may  be  regarded  as  inde- 
pendent of  each  other.  The  executive  power  is  vested  in  the  President, 
and,  as  far  as  his  powers  are  derived  from  the  Constitution,  he  is  beyond 
the  reach  of  any  other  department,  except  in  the  mode  prescribed  by  the 
Constitution  through  the  impeaching  power.  Kendall  v.  U.  S.  12  Pet.  524  ; 
S.  C.  5  Cranch  C.  C.  163. 

The  President  is  invested  with  certain  important  political  powers,  in  the 
exercise  of  which  he  is  to  use  his  discretion,  and  is  accountable  only  to  his 
country  in  his  political  character,  and  to  his  own  conscience.  To  aid  him 
in  the  performance  of  these  duties,  he  is  authorized  to  appoint  certain  offi- 
cers, who  act  by  his  authority  and  in  conformity  with  his  orders.  In  such 
cases  their  acts  are  his  acts,  and  whatever  opinion  may  be  entertained  of 
the  manner  in  which  executive  discretion  may  be  used,  still  there  exists, 
and  can  exist,  no  power  to  control  that  discretion.  The  subjects  are  polit- 
ical. They  respect  the  nation  and  not  individual  rights  ;  and  being,  in- 
trusted to  the  executive, 'the  decision  of  the  executive  is  conclusive.  Marbury 
v.  Madison,  i  Cranch,  137. 

The  President  has  no  power  to  dispense  with  or  forbid  the  execution  of 
any  law.  Kendall  v.  U.  S.  12  Pet.  524  ;  s.  C.  5  Cranch  C.  C.  163  ;  U.  S.  v. 
Smith,  Trial  of  Smith  &  Ogden,  80. 

The  President  has  no  common-law  prerogative  to  interdict  commercial 
intercourse  with  any  nation,  or  to  revive  any  act  whose  operation  has  ex- 
pired. The  Orono,  i  Gallis.  137. 

If  the  President  assumes  powers  which  should  have  the  authority  or 
sanction  of  Congress,  a  ratification  cures  the  defect.  Prize  Cases,  2  Black,. 
635. 


APPOINTMENT    OF    ELECTORS.  243 

The  President  is  exempt  from  the  writ  of  habeas  corpus,  not  because 
he  is  above  the  law,  or  because  he  can  do  no  wrong,  but  because  he  can 
not  be  held  responsible  except  through  the  medium  of  impeachment ;  and 
to  allow  the  writ  to  go  to  him  would  involve  the  necessity  of  punishing  him 
for  a  refusal  to  obey  it,  and  such  a  power  does  not  belong  to  the  judiciary, 
In  re  Geo.  B.  Keeler,  Hemp.  306. 

There  are  certain  political  duties  imposed  upon  many  officers  in  the 
executive  departments,  the  discharge  of  which  is  under  the  direction  of  the 
President.  Kendall  v.  U.  S.  12  Pet.  524 ;  s.  C.  5  Cranch  C.  C.  163. 

Congress  may  impose  upon  any  executive  officer  any  duty  it  may  think 
proper,  which  is  not  repugnant  to  any  right  which  is  secured  and  protected 
by  the  Constitution ;  and  in  such  cases  the  duty  and  responsibility  grow 
out  of  and  are  subject  to  the  control  of  law.  Kendall  v.  U.  S.  12  Pet. 
524;  S.  C.  5  Cranch  C.  C.  163  ;  Marbury  v.  Madison,  I  Cranch,  137. 

Congress  may  authorize  the  President  to  restrict  or  regulate  the  intro- 
duction of  merchandise  into  a  Territory,  under  such  penalties  as  Congress 
may  prescribe.  The  Louisa  Simpson,  2  Saw.  57  ;  U.  S.  v.  The  Francis 
Hatch,  13  A.  L.  Reg.  289. 

'2.  Each  State  shall  appoint,  in  such  manner  as  the 
legislature  thereof  may  direct,  a  number  of  electors, 
equal  to  the  whole  number  of  senators  and  representa- 
tives to  which  the  State  may  be  entitled  in  the  Con- 
gress ;  but  no  senator  or  representative,  or  person  hold- 
ing an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector. 

When  the  legislature  of  a  State  directs  the  manner  of  appointment  of 
electors,  that  law  has  its  authority  solely  from  the  Constitution.  It  is  a 
law  passed  in  pursuance  of  the  Constitution.  Ex  parte  Henry  E.  Hayne,  9 
C.  L.  N.  106;  S.  c.  i  Hughes,  571. 

If  the  electors  are  elected  by  the  people,  the  disqualification  can  not  be 
removed  by  resigning  the  office,  unless  the  resignation  takes  place  before 
the  election.  In  re  Geo.  H.  Corliss,  16  A.  L.  Reg.  15. 

The  disqualification  of  the  person  having  the  highest  number  of  votes 
does  not  have  the  effect  to  elect  the  minority  candidate.  In  re  Geo.  H.  Cor- 
liss, 1 6  A.  L.  Reg.  15. 

Where  the  votes  for  electors  are  required  to  be  canvassed  by  a  return- 
ing board,  the  Houses  may  take  notice  of  the  fact  that  the  board  had  no 
returns  before  it  at  all,  or  that  the  board  which  pretended  to  act  was  not  a 
legal  board.  Electoral  Count. 


244  CONSTITUTION    OF    THE    UNITED    STATES. 

A  judgment  on  a  quo  ivarranto  against  the  electors  can  not  affect  the 
validity  of  votes  previously  cast  on  the  day  appointed  by  Congress  for  that 
purpose.  Electoral  Count. 

No  State  legislature  can  change  the  appointment  of  electors  after  they 
have  been  elected  and  given  their  votes.  Electoral  Count. 

The  appointment  of  electors  and  mode  of  appointment  belong  exclu- 
sively to  the  State.  Congress  has  nothing  to  do  with  it,  and  no  control 
over  it,  except  that  Congress  is  empowered  to  determine  the  time  of  choos- 
ing the  electors  and  the  day  on  which  they  shall  give  their  votes.  In  all 
other  respects,  the  jurisdiction  and  power  of  the  State  are  cqhtrolling  and 
exclusive  until  the  functions  of  the  electors  have  been  performed.  Elec- 
toral Count. 

If  a  person  appointed  an  elector,  has  no  official  connection  with  the 
Federal  Government  when  he  gives  his  vote,  such  vote  is  not  liable  to  ex- 
ception. A  disqualification  at  the  time  of  the  election  is  not  material,  if 
such  disqualification  ceases  before  he  acts  as  an  elector.  Electoral  Count. 

If  a  person  who  is  disqualified  under  the  laws  of  the   State,  is  elected 
;and  casts  his  vote,  the  vote  must  be  counted.     Electoral  Count. 

[3.  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  two  persons,  of  whom  one  at 
least  shall  not  be  an  inhabitant  of  the  same  State  with 
themselves.  And  they  shall  make  a  list  of  all  the  per- 
sons voted  for,  and  of  the  number  of  votes  for  each  ; 
which  list  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  Government  of  the  United 
States,  directed  to  the  president  of  the  Senate.  The 
president  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates, and  the  votes  shall  then  be  counted.  The  per- 
son having  the  greatest  number  of  votes  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed  ;  and  if  there  be  more 
than  one  who  have  such  majority,  and  have  an  equal 
number  of  votes,  then  the  House  of  Representatives 
shall  immediately  choose,  by  ballot,  one  of  them  for 
President ;  and  if  no  person  .have  a  majority,  then,  from 
the  five  highest  on  the  list,  the  said  House  shall,  in  like 
manner,  choose  the  President.  But,  in  choosing  the 
President,  the  votes  shall  be  taken  by  States,  the  repre- 


THE   PRESIDENT.  245 

sentation  from  each  State  having  one  vote  ;  a  quorum 
for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority  of  all  the 
States  shall  be  necessary  to  a  choice.  In  every  case, 
after  the  choice  of  the  President,  the  person  having  the 
greatest  number  of  votes  of  the  electors,  shall  be  the 
Vice-president.  But  if  there  should  remain  two  or  more 
who  have  equal  votes,  the  Senate  shall  choose  from 
them,  by  ballot,  the  Vice-president] 

4.  The  Congress  may  determine  the  time  of  choos- 
ing the  electors,  and  the  day  on  which  they  shall  give 
their  votes ;  which  day  shall  be  the  same  throughout 
the  United  States. 

5.  No  person,  except  a  natural  born   citizen,  or  a 
citizen  of  the  United  States  at  the  time  of  the  adop- 
tion of  this  Constitution,  shall  be  eligible  to  the  office  of 
of  President ;  neither  shall  any  person  be  eligible  to 
that  office,  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,   and  been   fourteen  years  a  resident 
within  the  United  States. 

6.  In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation,  or  inability  to  dis- 
charge the  powers  and   duties  of  the  said  office,  the 
same  shall  devolve  on  the  Vice-president,  and  the  Con- 
gress may,  by  law,  provide  for  the  case  of  removal, 
death,  resignation,  or  inability,  both  of  the  President 
and  Vice-president,  declaring  what  officer  shall  then  act 
as  President,  and  such    officer   shall   act  accordingly, 
until  the  disability  be  removed,  or  a  President  shall  be 
elected. 

7.  The  President  shall,  at  stated  times,  receive  for 
his  services  a  compensation,  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that   period   any    other   emolument   from  the  United 
States,  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation  : 

9.  "  I   do  solemnly  swear    [or   affirm]  that   I  will 
faithfully  execute  the  office  of  President  of  the  United 


246  CONSTITUTION    OF    THE    UNITED    STATES. 

States,  and  will,  to  the  best  of  my  ability,  preserve,  pro- 
tect, and  defend  the  Constitution  of  the  United 
States." 

The  oath  to  preserve,  protect  and  defend  the  Constitution  simply  obliges 
the  President  to  obey  the  Constitution  himself,  and  to  use  the  power  which 
that  instrument  confers  upon  htm,  and  none  else,  to  cause  others  to  obey 
it.  Griffin  v.  Wilcox,  21  Ind.  370. 


SECTION   II. 

i.  The  president  shall  be  commander  in  chief  (a)  of 
the  army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  States,  when  called  into  the  ac- 
tual service  of  the  United  States ;  he  may  require  the 
opinion,  in  writing,  of  the  principal  officer  in  each  of 
the  executive  departments,  upon  any  subject  relating 
to  the  duties  of  their  respective  offices ;  and  he  shall 
have  power  to  grant  reprieves  and  pardons  (U)  for 
offenses  against  the  United  States,  except  in  cases  of 
impeachment. 


Military  Power. 

(a)  The  President  may  establish  rules  and  regulations  for  the  govern- 
ment of  the  army.  The  power  to  establish  implies  necessarily  the  power 
to  modify  or  repeal  or  create  anew.  U.  S.  v.  Eliason,  16  Pet.  291 ;  U.  S.  v. 
Webster,  2  Ware,  46. 

An  instruction  by  the  executive  to  a  naval  officer  can  not  legalize  an 
act  which  without  it  would  have  been  a  plain  trespass.  Little  v.  Barreme, 
2  Cranch,  170. 

The  President  has  the  authority  during  a  war,  to  employ  secret  agents 
to  enter  the  enemy's  lines  and  obtain  information  respecting  the  strength, 
resources,  and  movements  of  the  enemy,  and  contracts  to  compensate  such 
agents  are  so  far  binding  upon  the  Government,  as  to  render  it  lawful  for 
the  President  to  direct  payment  of  the  amount  stipulated  out  of  the  con- 
tingent fund  under  his  control.  Totten  v.  U.  S.  92  U.  S.  105. 

If  war  is  made  by  invasion  of  a  foreign  nation,  the  President  is  not  only 
authorized  but  bound  to  resist  force  by  force.  He  does  not  initiate  the 
war.  but  is  bound  to  accept  the  challenge  without  waiting  for  any  special 
legislative  authority.  The  Prize  Cases,  2  Black,  635. 


MILITARY    POWER.  247 

The  President  is  bound  to  meet  a  civil  war  in  the  shape  in  which  it 
presents  itself,  without  waiting  for  Congress  to  baptize  it  with  a  name.  The 
Prize  Cases,  2  Black,  635. 

The  President  has  the  power  jure  belli  to  declare  a  blockade  of  a  hos- 
tile port  in  a  civil  as  well  as  in  a  foreign  war.  The  Tropic  Wind,  24  Law 
Rep.  144;  The  Prize  Cases,  2  Black,  635. 

Whether  the  President,  in  fulfilling  his  duties  as  commander  in  chief  in 
suppressing  an  insurrection,  has  met  with  such  armed  hostile  resistance, 
and  a  civil  war  of  such  alarming  proportions  as  will  compel  him  to  accord 
to  them  the  character  of  belligerents,  is  a  question  to  be  decided  by  him, 
and  the  courts  milst  be  governed  by  the  decisions  and  acts  of  the  political 
department  of  the  government.  The  Prize  Cases,  2  Black,  635. 

The  power  of  the  President,  as  commander  in  chief,  though  not  de- 
fined by  the  Constitution,  is  limited  by  the  laws  and  usages  of  nations.  Of 
these  laws  and  usages  there  is  no  principle  better  settled  than  that  martial 
law  is  restricted  to  those  places  which  are  me  theatre  of  war,  and  to  their 
immediate  vicinity.  In  re  Nicholas  Kemp,  16  Wis.  359  ;  Ex  parte  Milli- 
gan,  4  Wall.  2. 

The  right  of  the  President  to  temporarily  govern  localities  through  his 
military  officers  is  derived  solely  from  the  fact  that  he  is  the  commander 
in  chief  of  the  army,  and  is  to  see  the  laws  executed,  and  he  can  exercise 
it  to  just  the  extent  that  a  commanding  general  in  the  army  of  the  United 
States  could,  and  no  farther.  Where  the  laws  are,  or  may  be,  executed 
\vithout  the  interference  of  the  President  with  the  military  force,  he  has  no 
right  thus  to  interfere.  Griffin  v.  Wilcox,  21  Ind.  370. 

The  Constitution  does  not  invest  the  President  with  power  to  arrest  or 
imprison,  or  to  authorize  another  to  arrest  or  imprison,  any  person  not  sub- 
ject to  military  law  at  any  time  or  under  any  exigency,  without  some  order, 
writ  or  precept  or'process  of  some  civil  court  of  competent  jurisdiction. 
He  can  not  extend  martial  law  beyond  the  sphere  of  military  operations. 
Jones  v.  Seward,  40  Barb.  563. 

The  right  of  a  military  officer  to  govern  by  martial  law  arises  upon  the 
fact  of  existing  or  immediately  impending  force,  at  a  given  place  and  time, 
against  legal  authority  which  the  civil  authority  is  incompetent  to  over- 
come, and  it  is  exercised  precisely  on  the  principle  on  which  self-defense 
justifies  the  use  of  force  by  individuals.  Griffin  v.  Wilcox,  21  Ind.  370. 

Martial  law  is  the  law  of  force,  applied  to  govern  persons  and  places 
where  the  civil  law  is  expelled,  and  its  officers  rendered  unable  to  execute 
it  by  forcible  resistance.  The  right  thus  temporarily  and  locally  to  exercise 
martial  law  in  case  of  necessity,  is  the  war  power  of  the  President,  and  is 
all  the  war  power  that  he  possesses  by  virtue  of  which  he  can  assume  to 
.govern,  independently  of  the  civil  law.  Griffin  T/.  Wilcox,  21  Ind.  370. 


248  CONSTITUTION    OF    THE    UNITED    STATES. 

The  President  has  a  right  to  govern  through  his  military  officers  when 
and  where  the  civil  power  of  the  United  States  is  suspended  by  force. 
Where  force  prevails,  martial  law  may  be  exercised.  Griffin  v.  Wilcox,  21 
Ind.  370  ;  Ex  parte  Milligan,  4  Wall.  2. 

The  true  test  in  cases  of  civil  war  is  whether  the  civil  authorities  are 
able,  by  the  ordinary  legal  process,  to  preserve  order,  punish  offenders,  and 
compel  obedience  to  the  laws.  If  they  are,  then  the  military  commander 
has  no  jurisdiction.  If,  on  the  other  hand,  through  the  disloyalty  of  the 
civil  magistrates,  or  the  insurrectionary  spirit  of  the  people,  the  laws  can 
not  be  enforced  and  order  maintained,  then  martial  law  takes  the  place  of 
civil  law  wherever  there  is  a  sufficient  military  force  to  execute  it.  In  re 
Nicholas  Kemp,  16  Wis.  359. 

The  precise  limits  of  the  jurisdiction  of  a  military  commander,  in  cases 
arising  near  the  scene  of  strife,  must  be  determined  according  to  the  cir- 
cumstances of  each  case.  In  re  Nicholas  Kemp,  16  Wis.  359. 

+ 

Martial  law  can  not  arise  from  a  threatened  invasion.     The  necessity 

must  be  actual  and  present,  the  invasion  real,  such  as  effectually  closes  the 
courts  and  deposes  the  civil  administration.     Ex  parte  Milligan,  4  Wall.  2. 

In  all  parts  of  the  country,  where  the  courts  are  open  and  the  civil 
power  is  not  expelled  by  force,  the  Constitution  and  the  laws  rule,  and  no 
citizen  not  connected  with  the  army  can  be  punished  by  the  military  power 
of  the  United  States,  nor  is  he  amenable  to  military  orders.  Griffin  v.  Wil- 
cox, 21  Ind.  370;  Skeen  v.  Monkeimer,  21  Ind.  I  ;  In  re  Nicholas  Kemp, 
16  Wis.  359  ;  Ex  parte  Milligan,  4  Wall.  2  ;  Johnson  v.  Jones,  44  111.  142. 

As  necessity  creates  martial  law,  so  it  limits  its  duration,  for  if  this  gov- 
ernment is  continued  after  the  courts  are  reinstated,  it  is  a  gross  usurpation 
of  power.  Ex  parte  Milligan,  4  Wall.  2. 

After  an  insurrection  has  been  suppressed,  and  a  provisional  govern- 
ment established,  and  a  State  Constitution  adopted,  a  citizen  can  not  be 
tried  by  a  court  martial  for  an  alleged  crime.  Ex  parte  James  Eagan,  5 
Blatch.  319. 

Martial  law  is  allowed  only  in  case  of  necessity,  and  this  necessity  must 
be  shown  affirmatively  by  the  party  assuming  to  exercise  this  extraordinary 
power  over  the  life,  liberty  and  property  of  a  citizen.  Ex  parte  James 
Eagan,  5  Blatch.  319. 

The  United  States,  it  is  true,  may  extend  its  boundaries  by  conquest  or 
treaty,  and  may  demand  the  cession  of  territory  as  the  condition  of  peace* 
in  order  to  indemnify  its  citizens  for  the  injuries  they  have  suffered,  or  to 
reimburse  the  Government  for  the  expenses  of  the  war.  But  this  can  be 
done  only  by  the  treaty  making  power  or  the  legislative  authority,  and  is 
not  a  part  of  the  power  conferred  upon  the  President  by  the  declaration  of 


MILITARY    POWER.  249 

war.  His  duty  and  his  power  are  purely  military.  As  commander  in  chief 
he  is  authorized  to  direct  the  movements  of  the  naval  and  military  forces 
placed  by  law  at  his  command,  and  to  employ  them  in  the  manner  he  may 
deem  most  effectual  to  harass,  conquer  and  subdue  the  enemy.  He  may 
invade  the  hostile  country  and  subject  it  to  the  sovereignty  and  authority 
of  the  United  States.  But  his  conquests  do  not  enlarge  the  boundaries  of 
the  Union,  nor  extend  the  operation  of  our  institutions  and  laws  beyond 
the  limits  before  assigned  to  them  by  legislative  authority.  Fleming  v* 
Page,  9  How.  603. 

If  the  conquered  territory  is  ceded  by  the  treaty  of  peace,  the  acquisi- 
tion is  confirmed,  and  the  ceded  territory  becomes  a  part  of  the  nation  to 
which  it  is  annexed,  either  on  the  terms  stipulated  in  the  treaty  of  cession,, 
or  on  such  as  its  new  master  shall  impose.  On  such  transfer  the  relations 
of  the  inhabitants  with  each  other  do  not  undergo  any  change.  Their  rela- 
tions with  their  former  sovereign  are  dissolved,  and  new  relations  are  cre- 
ated between  them  and  the  government  which  has  acquired  the  territory. 
The  same  act  which  transfers  their  country  transfers  the  allegiance  of  those 
who  remain  in  it,  and  the  law  which  may  be  denominated  political  is 
changed,  although  that  which  regulates  the  intercourse  and  general  con- 
duct of  individuals  remains  in  force  until  altered  by  the  newly  created 
power.  Am.  Ins.  Co.  v.  Canter,  i  Pet.  511;  Leitensdorfer  v.  Webb,  20 
How.  176. 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to  con- 
sider the  holding  of  conquered  territory  as  a  mere  military  occupation  until 
its  fate  shall  be  determined  by  a  treaty  of  peace.  Am.  Ins.  Co.  v.  Canter, 
i  Pet.  511. 

Although  the  former  political  relations  of  the  inhabitants  of  a  conquered 
territory  are  dissolved,  their  private  relations  to  each  other  and  their  rights 
of  property  remain  undisturbed,  except  so  far  as  they  are  in  their  nature 
and  character  found  to  be  in  conflict  with  the  Constitution  and  laws  of  the 
United  States,  or  with  any  regulations  which  the  conquering  and  occupy- 
ing authority  may  ordain.  Among  the  consequences  which  are  necessarily 
incident  to  a  change  of  sovereignty  is  the  appointment  or  control  of  the 
agents  by  whom  and  the  modes  in  which  the  government  of  the  occupant 
shall  be  administered.  The  ordinances  of  such  provisional  government 
displace  and  supersede  every  previous  institution  of  the  vanquished  or 
deposed  political  power  which  is  incompatible  with  them  during  the  time 
that  the  territory  is  held  by  the  United  States  as  occupying  conqueror. 
Leitensdorfer  v.  Webb,  20  How.  176. 

The  civil  government  established  in  the  exercise  of  provisional  rights 
over  a  conquered  territory  which  is  subsequently  ceded  to  the  Government 
by  the  treaty  of  peace,  does  not  cease  as  a  matter  of  course  or  as  a  neces- 
sary consequence  of  the  restoration  of  peace.  The  President  may  dissolve 


250  CONSTITUTION    OF    THE    UNITED    STATES. 

it  by  withdrawing  the  officers  who  administer  it.  Congress  may  put  an 
end  to  it.  The  right  inference  from  the  inaction  of  both  is  that  it  is  meant 
to  be  continued  until  it  is  legislatively  changed.  Cross  v.  Harrison,  16 
How.  164. 

The  President,  as  commander  in  chief,  may  exercise  the  belligerent 
rights  of  a  conqueror,  and  form  a  civil  government  for  conquered  territory, 
which  will  continue  to  be  operative  until  the  ratification  and  exchange  of  a 
treaty  of  peace.  Cross  v.  Harrison,  16  How.  164. 

The  ratification  of  a  treaty  of  peace  has  no  effect  upon  a  civil  govern- 
ment established  in  the  exercise  of  belligerent  rights  over  a  conquered  ter- 
ritory, until  official  information  of  the  ratification  is  received  by  it.  Cross 
•v.  Harrison,  16  How.  164. 

If  the  conquered  territory  is  retained  by  the  conqueror,  the  ordinances 
of  the  provisional  government  do  not  terminate  with  the  close  of  the  war, 
nor  are  the  former  institutions  thereby  revived  and  re-established.  The 
ordinances  and  institutions  of  the  provisional  government  can  only  be  re- 
voked or  modified  by  the  United  States  either  by  direct  legislation  on  the 
part  of  Congress,  or  by  that  of  a  territorial  government  in  the  exercise  of 
powers  delegated  by  Congress.  Leitensdorfer  v.  Webb,  20  How.  176. 

When  a  State  government  is  overthrown  by  a  rebellion  against  the 
United  States,  the  President,  on  obtaining  possession  of  the  territory,  may 
-appoint  a  military  governor.  Rutledge  v.  Fogg,  3  Cold.  554;  Texas  v. 
White,  7  Wall.  700. 

Wherever  the  territory  which  has  been  dominated  by  an  insurgent  power 
is  occupied  by  the  national  forces,  it  is  the  duty  of  the  National  Govern- 
ment to  provide,  as  far  as  possible,  so  long  as  the  war  continues,  for  the 
security  of  persons  and  property,  and  for  the  administration  of  justice.  The 
duty  of  the  National  Government  in  this  respect  is  no  other  than  that  which 
devolves  upon  the  government  of  a  regular  belligerent  occupying,  during 
war,  the  territory  of  another  belligerent.  It  is  a  military  duty  to  be  per- 
formed by  the  President  as  commander  in  chief.  The  Grapeshot,  9  Wall. 
129. 

A  military  governor  may  appoint  a  judge  with  authority  to  hold  a  court 
in  his  military  district.  Pennywit  v.  Eaton,  1 5  Wall.  382  ;  Mechanics' 
Bank  v.  Union  Bank,  22  Wall.  276. 

A  provisional  governor  may  create  courts  for  the  administration  of 
justice.  Such  tribunals  are  not  State,  but  Federal  courts,  deriving  their 
existence  and  all  their  powers  from  the  Federal  Government.  Scott  v. 
Billgerry,  40  Miss.  119. 

The  President,  as  commander  in  chief,  may  establish  a  provisional  court 
in  territory  taken  by  the  national  forces  from  an  insurgent  power,  to  con- 


MILITARY    POWER.  251 

tinue  during  the  war.  The  Grapeshot,  9  Wall.  129;  Kimball  v.  Taylor,  2 
Woods,  37  ;  Powell  v.  Boon,  43  Ala.  469  ;  Burke  V.  Tregre,  22  La.  Ann. 
629 ;  Armistead  v.  State,  43  Ala.  340. 

While  the  State  authorities  are  subverted,  the  question  whether  any  and 
what  civil  government  shall  be  permitted  is  a  matter  in  the  discretion  of 
the  Federal  Government.  During  the  military  occupation,  the  laws  of  the 
State  can  only  operate  so  far  as  it  chooses  to  allow,  and  can  only  be  ad- 
ministered by  such  agents  as  it  pleases  to  appoint.  The  President  can 
cause  all  the  laws  of  the  State  to  be  administered  and  executed,  or  he  can 
cause  the  whole  to  be  disregarded  and  set  at  naught.  Scott  z>.  Billgerry, 
40  Miss.  119. 

A  provisional  government  established  over  an  insurrectionary  State  may 
levy  and  collect  taxes  under  the  municipal  laws  of  the  State  which  are  not 
superseded  by  the  will  of  the  conqueror.  Rutledge  v.  Fogg,  3  Cold.  554. 

Taxes  levied  for  municipal  purposes  under  a  provisional  government 
may  be  collected  after  the  military  occupation  has  been  terminated  by  the 
re-establishment  of  the  State  government.  Rutledge  v.  Fogg,  3  Cold.  554. 

When  the  President  provides  for  calling  a  convention  to  form  a  State 
government,  he  may- exclude  those  who  have  participated  in  the  rebellion 
and  not  been  pardoned,  from  voting  for  delegates.  Ex  parte  Wm.  H. 
Hughes,  Phillips,  57. 

If  a  rebellion  overthrows  a  State  government,  the  President  may  adopt 
measures  to  enable  the  people  to  meet  in  convention  to  form  a  State  gov- 
ernment. Ex  parte  \Vm.  H.  Hughes,  Phillips,  57. 

The  power  of  the  President  to  establish  a  military  government  must  be 
exercised  in  subordination  to  the  Constitution.  Scott  v.  Billgerry,  40  Miss. 
119. 

When  an  insurrection  is  suppressed,  Congress  may  provide  for  the 
transfer  of  cases  pending  in  a  provisional  court,  and  of  its  judgments  and 
decrees,  to  the  proper  Federal  courts.  The  Grapeshot,  9  Wall.  1 29. 

The  powers  of  a  provisional  governor  are  not  restricted  to  the  particular 
subjects  specified  in  the  proclamation  appointing  him,  for  the  proclamation 
is  not  necessarily  his  only  authority.  Whatever  power  is  possessed  by  the 
President  may  be  delegated  by  him  to  the  governor,  and  in  the  absence  of 
any  evidence  that  any  particular  act  of  the  governor  is  disapproved  by  the 
President,  it  must  be  presumed  that  it  was  authorized  beforehand,  or  sub- 
sequently ratified  and  adopted.  Scott  v.  Billgerry,  40  Miss.  119. 


252  CONSTITUTION    OF    THE    UNITED    STATES. 


Pardon*. 

(b)  The  language  used  in  the  Constitution  conferring  the  power  to 
grant  reprives  and  pardons  must  be  construed  with  reference  to  its  mean- 
ing at  the  time  of  its  adoption.  At  that  time,  both  Americans  and  English- 
men attached  the  same  meaning  to  the  word  "  pardon."  Without  such  a 
power  of  clemency  to  be  exercised  by  some  department  or  functionary  of 
the  government,  it  would  be  most  imperfect  and  deficient  in  its  political 
morality,  and  in  that  attribute  of  deity  whose  judgments  are  always  tem- 
pered with  mercy.  Ex  parte  William  Wells,  18  How.  307. 

The  word  "  pardon  "  was  not  meant  to  be  used  exclusively  with  refer- 
ence to  an  absolute  pardon,  exempting  the  criminal  from  the  punishment 
which  the  law  inflicts  for  a  crime  he  has  committed.  In  common  parlance 
it  is  forgiveness,  release,  remission ;  forgiveness  for  an  offense,  whether  it 
be  one  for  which  the  person  committing  it  is  liable  in  law  or  otherwise ;  re- 
lease from  pecuniary  obligation  ;  or  it  is  the  remission  of  a  penalty  to  which 
one  may  have  subjected  himself  by  the  non-performance  of  an  undertaking 
or  contract ;  or  when  a  statutory  penalty  in  money  has  been  incurred  and 
it  is  remitted  by  a  public  functionary  having  power  to  remit  it.  In  law  it 
has  different  meanings,  which  were  as  well  understood  when  the  Constitu- 
tion was  made  as  any  other  word  in  the  Constitution  now  is.  Such  a  thing 
as  a  pardon,  without  a  designation  of  its  kind,  is  not  known  in  the  law. 
Time  out  of  mind  in  the  earliest  books  of  the  English  law,  every  pardon 
has  its  particular  denomination.  They  are  general,  special  or  particular, 
conditional  or  absolute,  statutory,  not  necessary  in  some  cases  and  in  some 
grantable  of  course.  Ex  parte  William  Wells,  18  How.  307. 

The  President  may  grant  a  conditional  pardon.  The  language  of  the 
Constitution  is  general,  that  is,  common  to  the  class  of  pardons,  or  extend- 
ing the  power  to  pardon  to  all  kinds  of  pardon  known  in  the  law  as  such, 
whatever  may  be  their  denomination.  A  conditional  pardon  is  one  of 
them.  In  this  view  of  the  Constitution,  by  giving  to  its  words  their  proper 
meaning,  the  power  to  pardon  conditionally  is  not  one  of  inference  at  all, 
but  one  conferred  in  terms.  Ex  parte  William  Wells,  18  How.  307. 

The  power  is  unlimited  with  the  exception  stated.  It  extends  to  every 
offense  known  to  the  law,  and  may  be  exercised  at  any  time  after  its  com- 
mission, either  before  legal  proceedings  are  taken  or  during  their  pendency, 
or  after  conviction  and  judgment.  Ex  parte  Garland,  4  Wall.  333. 

The  power  of  the  President  is  not  subject  to  legislative  control.  Con- 
gress can  neither  limit  the  effect  of  his  pardon  nor  exclude  from  its  exercise 
any  class  of  offenders.  The  benign  prerogative  of  mercy  reposed  in  him 
can  not  be  fettered  by  any  legislative  restrictions.  Ex  parte  Garland,  4 
Wall.  333. 


PARDONS.  253 

A  pardon  reaches  both  the  punishment  prescribed  for  the  offense  and 
the  guilt  of  the  offender,  and  when  the  pardon  is  full  it  releases  the  punish- 
ment and  blots  out  of  existence  the  guilt,  so  that  in  the  eye  of  the  law  the 
offender  is  as  innocent  as  if  he  had  never  committed  the  offense.  Congress 
can  not  exclude  him  from  a  previously  acquired  right,  by  the  exaction  of 
an  expurgatory  oath  covering  the  offense.  Ex  parte  Garland,  4  Wall. 
333- 

If  a  person  under  the  terms  of  a  pardon,  became  entitled  to  a  restora- 
tion of  abandoned  property,  Congress  can  not  provide  that  the  Supreme 
Court  shall  dismiss  a  cause  for  want  of  jurisdiction,  when  it  ascertains  that 
he  was  entitled  to  the  property  by  the  pardon.  U.  S.  v.  Klein,  13  Wall. 
128. 

The  grant  to  the  President  of  -the  power  to  pardon,  must  be  held  to 
carry  with  it,  as  an  incident,  the  'power  to  release  penalties,  and  forfeitures 
which  accrue  from  the  offenses.  Osborn  v.  U.  S.  91  U.  S.  474. 

To  the  executive  alone  is  intrusted  the  power  of  pardon,  and  it  is 
granted  without  limit.  Pardon  includes  amnesty.  It  blots  out  the  offense 
pardoned,  and  removes  all  its  penal  consequences.  Congress  can  not 
change  the  effect  of  a  pardon.  U.  S.  v.  Klein,  13  Wall.  128. 

The  power  to  grant  reprieves  is  not  only  to  be  used  to  delay  a  judicial 
sentence,  when  the  President  shall  think  the  merits  of  the  case,  or  some 
cause  connected  with  the  offender,  may  require  it,  but  extends  also  to  cases 
ex  necessitate  leg  is,  as  where  a  female  after  conviction  is  found  to  be  en- 
ceinte, or  where  a  convict  becomes  insane,  or  is  alleged  to  be  so.  Ex  parte 
William  Wells,  18  How.  307. 

The  power  of  pardon  is  conferred  on  the  office  of  President,  and  prior 
to  delivery  one  President  may  recall  and  cancel  a  pardon  granted  by  his 
predecessor.  In  re  Moses  De  Puy,  3  Ben.  307. 

A  pardon  is  a  deed,  to  the  validity  of  which  delivery  is  essential,  and 
delivery  is  not  complete  without  acceptance.  It  may  be  rejected  by  the 
person  to  whom  it  is  tendered.  U.  S.  v.  Wilson,  7  Pet.  150;  In  re  The- 
ophilus  C.  Callicott,  8  Blatch.  89. 

Until  a  pardon  is  delivered,  all  that  may  have  been  done  is  mere  matter 
of  intended  favor,  and  may  be  canceled  to  accord  with  a  change  of  inten- 
tion. In  re  Moses  De  Puy,  3  Ben.  307. 

Although  a  pardon  has  been  properly  signed  and  sealed,  and  sent  to 
the  marshal,  it  may  be  recalled  and  canceled  before  it  is  delivered  to  the 
warden  of  the  prison  where  the  criminal  is  confined.  In  re  Moses  De  Puy, 
3  Ben.  307. 

The  President  may  grant  a  pardon  after  the  expiration  of  the  term  of 
sentence.  The  power  to  pardon  continues  sd  long  as  any  of  the  legal  con- 
sequences of  the  offense  remain.  Stetler's  Case,  I  Phil.  302. 


254  CONSTITUTION    OF    THE    UNITED    STATES. 

2.  He  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  (a]  provid- 
ed two-thirds  of  the  senators  present  concur ;  and  he 
shall  nominate,  and  by  and  with  the  advice  and  consent 
of  the  Senate,  shall  appoint  ambassadors,  other  public 
ministers,  and  consuls,  judges  of  the  Supreme  Court,  and 
all  other  officers  (ft)  of  the  United  States,  whose  ap- 
pointments are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law.  But  the  Congress 
may,  by  law,  vest  the  appointment  of  such  inferior  offi- 
cers as  they  think  proper,  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments. 


Treaties 

(a)  The  power  to  make  treaties  is  given  by  the  Constitution  in  general 
terms,  without  any  description  of  the  objects  intended  to  be  embraced  by 
it,  and  consequently  it  was  designed  to  include  all  those  subjects  which  in 
the  ordinary  intercourse  of  nations  had  usually  been  made  subjects  of  ne- 
gotiation and  treaty,  and  which  are  consistent  with  the  nature  of  our  insti- 
tutions, and  distribution  of  powers  between  the  general  and  State  Govern- 
ments. Holmes  v.  Jennison,  14  Pet.  540;  U.  S.  v.  43  Gallons,  93  U.  S. 
1 88. 

The  power  to  make  treaties  is  given  without  restraining  it  to  particular 
objects  in  as  plenipotentiary  a  form  as  it  is  held  by  any  other  sovereign  in 
any  other  community.  This  principle  results  from  the  form  and  necessities 
of  the  Government  as  elicited  by  a  general  view  of  the  Federal  compact. 
Before  the  compact,  the  States  had  the  power  of  treaty  making  as  poten- 
tially as  any  power  on  earth.  It  extended  to  every  subject.  By  the  com- 
pact they  expressly  granted  it  to  the  Federal  Government  in  general  terms, 
and  prohibited  it  to  themselves.  The  General  Government  must  therefore 
hold  it  as  fully  as  the  States  held  it,  with  the  exceptions  that  necessarily 
flow  from  a  proper  construction  of  the  other  powers  granted  and  those 
prohibited  by  the  Constitution.  People  v.  Gerke,  5  Cal.  381. 

The  recognition  and  enforcement  of  the  principles  of  public  law  being 
one  of  the  ordinary  subjects  of  treaties,  were  necessarily  included  in  the 
power  conferred  on  the  General  Government.  As  the  rights  and  duties  of 
nations  towards  one  another,  in  relation  to  fugitives  from  justice,  are  a  part 
of  the  law  of  nations,  and  have  always  been  treated  as  such  by  the  writers 
upon  public  law,  it  follows  that  the  treaty  making  power  must  have  author- 
ity to  decide  how  far  the  right  of  a  foreign  nation,  in  this  respect,  will  be 
recognized  and  enforced  when  it  demands  the  surrender  of  any  one  charged 


TREATIES.  255 

with  offenses  against  it.     This  power  can  not  be  exercised  by  the  States^ 
Holmes  v.  Jennison,  14  Pet.  540;  People  v.  Curtis,  50  N.  Y.  321. 

A  State  can  not  regulate  the  surrender  of  fugitives  from  justice  to  for- 
eign countries,  although  no  action  has  been  taken  by  the  Federal  Govern- 
ment. People  v.  Curtis,  50  N.  Y.  321. 

A  State  law  relating  to  the  surrender  of  fugitives  from  justice  from  for- 
eign countries,  is  void.  People  v.  Curtis,  50  N.  Y.  321. 

A  treaty  allowing  a  reasonable  time  to  those,  after  the  death  of  the 
owner,  who  would  be  entitled  to  real  estate  upon  the  death  of  the  owner,  if 
they  were  not  aliens,  to  sell  the  estate  and  withdraw  the  proceeds  without 
molestation,  is  valid.  People  v.  Gerke,  5  Cal.  381. 

A  treaty  may  give  aliens  the  right  to  purchase  and  hold  land  in  the 
United  States.  Chirac  z>.  Chirac,  2  Wheat.  259. 

The  political  rights  of  the  people  of  the  several  States  as  such  are  not 
subjects  of  treaty  stipulations.  Pierce  v.  State,  13  N.  H.  336;  S.  C.  $ 
tlow.  504. 

An  Indian  treaty  providing  for  a  cession  of  land  may  stipulate  that  the 
law  prohibiting  the  sale  of  spirituous  liquor  in  the  ceded  territory  shall 
remain  in  force,  although  it  lies  within  the  limits  of  a  State.  U.  S.  z/.  La- 
riviere,  23  I.  R.  R.  305. 

The  right  of  eminent  domain  is  inseparably  attached  to  national  em- 
pire and  sovereignty,  and  accompanies  the  right  of  making  peace,  whether 
that  right  be  vested  in  one  or  many.  Jones  v.  Walker,  2  Paine,  688. 

Citizens  abroad  must  look  to  the  President  for  protection  of  person  and 
of  property,  and  for  the  faithful  execution  of  the  laws  existing  and  in- 
tended for  their  protection.  For  this  purpose  the  whole  executive  power 
of  the  country  is  placed  in  his  hands  under  the  Constitution  and  the  laws 
passed  in  pursuance  thereof.  Durand  v.  Hollins,  4  Blatch.  451. 

As  the  executive  head  of  the  nation,  the  President  is  made  the  only  le- 
gitimate organ  of  the  General  Government  to  open  and  carry  on  correspond- 
ence or  negotiations  with  foreign  nations  in  matters  concerning  the  inter- 
ests of  the  country  or  its  citizens.  Durand  z/.  Hollins,  4  Blatch.  451. 

The  duty  of  interposing  for  the  protection  of  the  lives  or  property  of 
citizens  abroad,  must  of  necessity  rest  in  the  discretion  of  the  President. 
Where  the  public  act  or  order  rests  in  the  discretion  of  the  executive, 
neither  he  nor  his  authorized  agent  is  personally  responsible  civilly  for  the 
consequences.  Durand  v.  Hollins,  4  Blatch.  451. 


256  CONSTITUTION    OF    THE    UNITED    STATES. 

Offices. 

(b)  Some  ambiguity  of  expression  has  found  its  way  into  this  clause. 
If  the  relative  "  which  "  refers  to  the  word  "  appointments,"  that  word  is 
referred  to  in  a  sense  rather  different  from  that  in  which  it  had  been  used. 
It  is  used  to  signify  the  act  of  placing  a  man  in  office,  and  referred  to  as 
signifying  the  office  itself.  The  relative  may,  however,  be  construed  as  re- 
ferring to  the  word  "  offices,"  which  must  be  understood  although  not  ex- 
pressed. The  Constitution  then  declares  that  all  offices  of  the  United 
States,  except  in  cases  where  the  Constitution  may  otherwise  provide, 
shall  be  established  by  law.  U.  S.  v.  Maurice,  2  Brock.  96. 

An  office  is  a  public  charge  or  employment,  and  he  who  performs  the 
duties  of  the  office  is  an  officer.  U.  S.  v.  Maurice,  2  Brock.  96. 

Although  an  office  is  an  employment,  it  does  not  follow  that  every  em- 
ployment is  an  office.  A  man  may  certainly  be  employed  under  a  contract, 
express  or  implied,  to  do  an  act  or  perform  a  service  without  becoming  an 
officer.  U.  S.  z/.  Maurice,  2  Brock.  96. 

If  a  duty  is  a  continuing  one,  which  is  denned  by  rules  prescribed  by 
the  Government,  and  not  by  contract,  which  an  individual  is  appointed 
by  Government  to  perform,  who  enters  on  the  duties  appertaining  to  his 
.station,  without  any  contract  defining  them — if  those  duties  continue, 
though  the  person  be  changed — it  is  very  difficult  to  distinguish  such 
a  charge  or  employment  from  an  office,  or  the  person  who  performs  the 
duties,  from  an  officer.  U.  S.  v.  Maurice,  2  Brock.  96. 

The  mere  direction  that  a  thing  shall  be  done,  without  prescribing  the 
mode  of  doing  it,  can  not  fairly  be  construed  into  the  establishment  of  an 
office,  for  the  purpose  of  the  object  can  be  effected  without  one.  U.  S.  v. 
Maurice,  2  Brock.  96. 

All  offices  except  in  cases  where  the  Constitution  itself  may  otherwise 
provide,  must  be  established  by  law.  U.  S.  v.  Maurice,  2  Brock.  96. 

A  State  magistrate  who  commits  offenders  against  the  criminal  laws  of 
the  United  States  renders  a  voluntary  service,  and  in  an  enlarged  sense  is 
pro  hac  vice  an  officer,  but  not  one  within  the  meaning  of  this  clause.  He 
is  an  officer  of  the  State,  and  not  a  Federal  officer.  Ex  parte  Gist,  26  Ala. 
156. 

Congress  can  not  by  law  designate  the  person  to  fill  an  office  under  the 
Government.  U.  S.  v.  Ferreira,  13  How.  40. 

The  heads  of  departments  can  make  an  appointment  to  office  only  in 
those  cases  where  they  have  been  authorized  so  to  do  by  some  act  of 
Congress,  U.  S.  v.  Maurice,  2  Brock.  96. 

Some  point  of  time  must  be  taken  when  the  power  of  the  executive  over 
an  officer  not  removable  at  his  will  must  cease.  That  point  of  time  must 


THE    PRESIDENT.  257 

be  when  the  constitutional  power  of  appointment  has  been  exercised,  and 
this  power  has  been  exercised  when  the  last  act  required  from  the  person 
possessing  the  power  has  been  performed.  This  last  act  is  the  signature 
of  the  commission.  Marbury  v.  Madison,  I  Cranch,  137. 

Neither  the  transmission  of  the  commission  to  the  appointee,  nor  an 
acceptance  thereof,  is  necessary  to  complete  his  right.  Marbury  z>.  Mad- 
ison, i  Cranch,  137. 

A  formal  delivery  of  the  commission  to  the  appointee  is  not  essential 
to  the  validity  of  the  commission.  Marbury  v.  Madison,  i  Cranch,  137. 

The  appointing  power  designated  in  the  latter  part  of  the  section  was 
no  doubt  intended  to  be  exercised  by  the  department  of  the  Government  to 
which  the  officer  to  be  appointed  most  appropriately  belonged.  The  ap- 
pointment of  clerks  of  court  properly  belongs  to  courts  of  law,  and  that  a 
clerk  is  one  of  the  inferior  officers  contemplated  by  this  provision  of  the 
Constitution  can  not  be  questioned.  Ex  parte  Hennen,  13  Pet.  230. 

The  President  can  not  make  a  temporary  appointment  in  a  recess,  if 
the  Senate  was  in  session  when  or  since  the  vacancy  occurred.  Case  of  Dis- 
trict Attorney,  16  A.  L.  Reg.  786. 

Congress  can  not  extend  an  existing  term  in  an  office  in  such  manner 
as  to  prolong  absolutely  or  conditionally  the  tenure  of  a  present  incumbent. 
This  can  not  be  done  otherwise  than  by  a  renommation  or  new  appoint- 
ment by  the  President,  and  concurrence  of  the  Senate  as  to  the  additional 
period.  Case  of  District  Attorney,  16  A.  L.  Reg.  786. 

Congress  may  vest  the  appointment  of  a  commissioner  in  the  Circuit 
Court,  although  his  power  is  of  a  judicial  nature.  Ex  parte  H.  Robinson, 
6  McLean,  355. 

The  President,  in  his  discretion,  may  remove  any  officer  whether  civil 
or  military,  unless  Congress  shall  have  given  some  other  duration  to  the 
office.  Gratiot  v.  U.  S.  i  Ct.  Cl.  258. 

A  civil  officer  has  a  right  to  resign  his  office  at  pleasure,  and  it  is  not  in 
the  power  of  the  President  to  compel  him  to  remain  in  office.  It  is  only 
necessary  that  the  resignation  should  be  received  to  take  effect,  and  this 
does  not  depend  on  the  acceptance  of  rejection  of  the  resignation  by  the 
President.  U.  S.  v.  Wright,  i  McLean,  509. 

It  has  become  the  settled  and  well  understood  construction  of  the  Con- 
stitution that  the  power  to  remove  officers  appointed  by  the  President  and 
Senate  is  vested  in  the  President  alone.  Ex  parte  Hennen,  13  Pet.  230; 
U.  S.  v.  Avery,  i  Deady,  204. 

All  inferior  officers  appointed  by  authority  of  law,  under  the  President, 
or  the  courts  of  law,  or  the  heads  of  departments,  hold  their  office  at  the 
17 


258  CONSTITUTION    OF    THE    UNITED    STATES. 

discretion  of  the  appointing  power.     Ex  parte  Hennen,  13  Pet.  230;  U.  S, 
v.  Avery,  I  Deady,  204. 

A  removal  from  office  may  be  either  express— that  is,  by  a  notification- 
by  order  of  the  President  that  an  officer  is  removed— or  implied  by  the  ap- 
pointment of  another  person  to  the  same  office.  But  in  either  case  the 
removal  is  not  completely  effected  till  notice  is  actually  received  by  the 
person  removed.  Bowerbank  v.  Morris,  Wall.  Sr.  118. 

3.  The  President  shall  have  power  to  fill  up  all  va- 
cancies that  may  happen  during  the  recess  of  the  Sen- 
ate, by  granting  commissions  which  shall  expire  at  the 
end  of  their  next  session. 

This  power  is  not  confined  to  vacancies  which  may  happen  in  offices 
created  by  law.  U.  S.  v.  Maurice,  2  Brock.  96. 


SECTION  III. 

i.  He  shall,  from  time  to  time,  give  to  the  Con- 
gress information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient ;  he  may,  on  extra- 
ordinary occasions,  convene  both  houses,  or  either  of 
them,  and,  in  case  of  disagreement  between  them,  with 
respect  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper ;  he  shall 
receive  ambassadors  and  other  public  ministers,  he 
shall  take  care  that  the  laws  be  faithfully  executed  ; 
and  shall  commission  all  the  officers  of  the  United 
States. 

The  President  is  not  authorized  to  execute  the  laws  himself,  or  through 
agents  or  officers  civil  or  military  appointed  by  himself,  but  he  is  to  take 
care  that  they  be  faithfully  carried  into  execution,  as  they  are  expounded 
and  adjudged  by  the  co-ordinate  branch  of  the  Government  to  which  that 
duty  is  assigned.  Ex  parte  John  Merryman,  Tansy,  246. 

The  President  is  to  take  care  that  the  laws  are  faithfully  executed,  but 
only  by  such  means  as  the  Constitution  and  laws  themselves  have  given 
him  power  to  employ,  that  is,  by  causing  proceedings  to  be  instituted  ac- 
cording to  law  against  those  who  violate  the  law,  and  by  employing  what- 
ever force  may  be  necessary  to  overcome  all  resistance  that  is  offered  to 


JUDICIAL    POWER.  259 

their  execution.  But  he  is  to  execute  the  laws,  not  to  make  or  change 
them.  If  their  more  perfect  execution  requires  additional  laws,  the  Pres- 
ident is  wholly  incompetent  to  provide  this.  It  can  be  done  by  legislation 
only.  So  the  oath  to  preserve  and  defend  the  Constitution  gives  the  Pres- 
ident no  additional  powers.  He  can  not  adopt  all  imaginable  means  that 
he  may  deem  expedient  for  this  purpose,  but  he  is  to  defend  it  only  by  the 
use  of  such  powers  as  the  instrument  itself  and  the  laws  enacted  under  it 
confer  upon  him.  In  re  Nicholas  Kemp,  16  Wis.  359. 

SECTION    IV. 

i.  The  President,  Vice-president,  and  all  civil  of- 
ficers of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of,  treason,  brib- 
ery, or  other  high  crimes  and  misdemeanors. 

« 

The  power  of  impeachment  extends  to  a  person  who  is  charged  with 
the  commission  of  a  high  crime  while  he  was  a  civil  officer  and  acting  in 
his  official  character,  although  he  ceased  to  be  such  officer  before  the  find- 
ing of  articles  of  impeachment.  Impeachment  of  Wm.  W.  Belknap. 

Ag  Senator  who  has  been  expelled  from  his  seat  is  not,  after  such  ex- 
pulsion, liable  to  impeachment  for  acts  done  while  he  was  a  Senator.  Im- 
peachment of  Wm.  Blount,  Whart.  St.  Tr.  250. 


ARTICLE    III. 

SECTION  I. 

i.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may,  from  time  to  time,  ordain 
and  establish.  The  judges,  both  of  the  Supreme  and 
inferior  courts,  shall  hold  their  offices  during  good  be- 
havior ;  and  shall,  at  stated  times,  receive  for  their  serv- 
ices a  compensation  which  shall  not  be  diminished  dur- 
ing their  continuance  in  office. 

Judicial  Power. 

By  the  term  "judicial  power"  is  meant  that  power  with  which  the 
courts  are  to  be  clothed  for  the  purpose  of  the  trial  and  determining  ot 
causes.  Ex  parte  Gist,  26  Ala.  156. 


260  CONSTITUTION    OF    THE    UNITED    STATES. 

It  is  not  sufficient  to  bring  a  matter  under  the  judicial  power  that  it 
involves  the  exercise  of  judgment  upon  law  and  facts.  U.  S.  V.  Ferreira, 
13  How.  40;  Murray  v.  Hoboken  Co.  18  How.  272;  Ex  parte  Gist,  26 
Ala.  156. 

The  power  to  hear  and  pass  upon  the  validity  of  a  claim  in  an  ex  parte 
proceeding  is  not  a  judicial  power.  U.  S.  v.  Ferreira,  13  How.  40;  U.  S. 
v.  Todd,  13  How.  52 ;  Humphreys  v.  U.  S.  I  Dev.  204. 

A  provision  requiring  an  assessor  to  impose  a  certain  penalty,  if  he  shall 
find  a  return  false,  does  not  confer  judicial  power,  and  is  valid.  Doll  v. 
Evans,  15  I.  R.  R.  143. 

Congress  can  not  empower  a  commissioner  to  commit  a  person  for  an 
alleged  contempt.  Ex  parte  George  Doll,  7  Phila.  595. 

The  auditing  of  the  accounts  of  a  receiver  of  public  moneys  may,  in  an 
enlarged  sense,  be  a  judicial  act.  So  are  all  those  administrative  duties 
the  performance  of  which  involves  an  inquiry  into  the  existence  of  facts 
and  the  application  to  them  of  rules  of  law.  The  adjustment  of  the  bal- 
ances due  from  accounting  officers  is  not  necessarily  and  without  regard 
to  the  consent  of  Congress  a  judicial  controversy.  Murray  v.  Hoboken 
Co.  18  How.  272. 

Congress  can  neither  withdraw  from  judicial  cognizance  any  matter 
which,  from  its  nature,  is  the  subject  of  a  suit  at  the  common  law,  or  in 
equity,  or  in  admiralty,  nor  bring  under  the  judicial  power  a  matter  which, 
from  its  nature,  is  not  the  subject  of  judicial  determination.  At  the  same 
time,  there  are  matters  involving  public  rights  which  may  be  presented  in 
such  form  that  the  judicial  power  is  capable  of  acting  upon  them,  and 
which  are  susceptible  of  judicial  determination,  but  which  Congress  may 
or  may  not  bring  within  the  cognizance  of  the  courts  of  the  United  States, 
as  it  may  deem  proper.  Murray  v.  Hoboken  Co.  18  How.  272. 

Congress  may  consent  to  a  second  trial  of  a  claim  against  the  United 
States,  although  a  judgment  thereon  has  been  rendered  in  favor  of  the 
Government.  Nock  v.  U.  S.  2  Ct.  Cl.  451. 

Neither  the  legislative  nor  the  executive  branches  of  the  Government 
can  assign  to  the  judicial  any  duties  but  such  as  are  properly  judicial,  and 
to  be  performed  in  a  judicial  manner.  Hayburn's  Case,  2  Dall.  409;  U. 
S.  v.  Ferreira,  13  How.  40. 

Whether  a  foreign  country  has  become  an  independent  State  is  a  ques- 
tion for  the  treaty  making  power  to  determine,  and  can  not  .be  decided  by 
the  judicial  tribunals.  Kennett  v.  Chambers,  14  How.  38;  Gelston  v. 
Hoyt,  3  Wheat.  246;  Rose  v.  Himely,  4  Cranch,  241. 


LIMITED    JURISDICTION.  26 1 

Congress  can  not  confer  any  part  of  the  judicial  power  upon  an  execu- 
tive officer.  Beatty  v.  U.  S.  i  Dev.  231. 

The  condition  of  peace  or  war,  public  or  civil,  in  a  legal  sense,  must  be 
determined  by  the  political  department  of  the  Government,  not  the  judicial 
U.  S.  v.  129  Packages,  11  A.  L.  Reg.  419. 

This  clause  does  not  apply  to  the  abnormal  condition  of  conquered  ter- 
ritory in  the  occupancy  of  a  conquering  army,  nor  prohibit  the  establish- 
ment of  military  courts  in  an  insurrectionary  State.  Mechanics'  Bank  v. 
Union  Bank,  22  Wall.  276;  The  Grapeshot,  9  Wall.  179. 


Limited   Jurisdiction. 

The  judicial  power  of  the  United  States  is  to  be  exercised  by  courts  or- 
ganized for  the  purpose  and  brought  into  existence  by  an  effort  of  the  legis- 
lative power  of  the  Union.  Of  all  the  courts  which  the  United  States  may 
under  their  general  powers  constitute,  one  only,  the  Supreme  Court,  pos- 
sesses jurisdiction  derived  immediately  from  the  Constitution,  of  which  the 
legislative  power  can  not  deprive  it.  All  other  courts  created  by  the  Gen- 
eral Government  possess  no  jurisdiction  but  what  is  given  them  by  the 
power  that  creates  them,  and  can  be  vested  with  none  but  what  the  power 
ceded  to  the  General  Government  will  authorize  it  to  confer.  Sheldon  v. 
Sill,  8  How.  441  ;  M'Intire  v.  Wood,  7  Cranch,  504;  Kendall  v.  U.  S.  12 
Pet.  524 ;  S.  C.  5  Cranch  C.  C.  163  ;  Gary  v.  Curtis,  3  How.  236;  Bank  v. 
Northumberland,  4  Conn.  333  ;  S,  C.  4  Wash.  108 ;  U.  S.  v.  Railroad  Bridge 
Co.  6  McLean,  517  ;  Bank  of  U.  S.  v.  Roberts,  4  Conn.  323  ;  U.  S.  v.  Bed- 
ford Bridge,  I  W.  &  M.  401 ;  Shute  v.  Davis,  Pet.  C.  C.  431  ;  U.  S.  v. 
Ta-wan-ga-ca,  Hemp.  304;  Hubbard  v.  Northern  R.  R.  Co'  3  Blatch.  84; 
Ex  parte  Joseph  De  Cabrera,  I  Wash.  232 ;  Mayor  v.  Cooper,  6  Wall.  247 ; 
Turner  v.  Bank,  4  Dall.  8  ;  Smith  v.  Allyn,  I  Paine,  453 ;  Moffat  v.  Soley, 
2  Paine,  103;  contra,  Dundas  v.  Bowler,  3  McLean,  204;  Brainard  v.  Wil- 
liams, 4  McLean,  122. 

The  Constitution  declares  that  the  judicial  power  shall  be  vested  in  one 
Supreme  Court  created  by  the  Constitution,  and  in  such  inferior  courts  as 
Congress  shall,  from  time  to  time,  ordain  and  establish.  The  Constitution 
defines  the  portions  of  the  judicial  power  vested  in  the  Supreme  Court, 
and  leaves  the  residue  to  be  distributed  among  the  inferior  courts,  which 
may  be  established  by  law,  and  to  be  vested  or  not  vested  in  them,  respect- 
ively, from  time  to  time,  according  to  the  discretion  of  Congress.  The 
powers,  therefore,  not  bestowed  upon  the  Federal  courts  by  legislative  pro- 
visions remain  dormant  until  some  law  shall  call  them  into  action  by  de- 
signating the  particular  tribunal  which  shall  be  authorized  to  exercise  them. 
Bank  of  U.  S.  v.  Roberts,  4  Conn.  323;  Bank  of  U.  S.  v.  Northumberland 
Bank,  4  Conn.  333. 


262  CONSTITUTION    OF    THE    UNITED    STATES. 

The  Federal  courts  can  not  exercise  a  common-law  jurisdiction  in  crim- 
inal cases.  U.  S.  v.  Hudson..  7  Cranch,  32 ;  U.  S.  v.  Coolidge,  I  Wheat. 
41 5 ;  S.  C.  I  Gallis.  488 ;  contra,  U.  S.  v.  Ravara,  2  Ball.  297 ;  U.  S.  v.  Wor- 
rall,  2  Ball.  384. 

The  Federal  courts  can  not  proceed  by  information  in  criminal  cases, 
unless  the  power  is  granted  by  Congress.  U.  S.  v.  Joe,  4  C.  L.  N.  105. 

Congress  may  transfer  a  suit  from  one  inferior  tribunal  to  another.  Stuart 
•u.  Laird,  i  Cranch,  299. 


Territorial  Court*. 

Territorial  courts  are  legislative  courts  created  in  virtue  of  the  general 
right  of  sovereignty  which  exists  in  the  Government,  or  in  virtue  of  that 
clause  which  enables  Congress  to  make  all  needful  rules  and  regulations 
respecting  the  territory  belonging  to  the  United  States.  The  jurisdiction 
with  which  they  are  invested  is  not  a  part  of  that  judicial  power  which  is 
defined  in  this  article,  but  is  conferred  by  Congress  in  the  execution  of  those 
general  powers  which  that  body  possesses  over  the  territories  of  the  United 
States.  Am.  Ins.  Co.  v.  Canter,  i  Pet.  511  ;  Stacy  v.  Abbott,  I  A.  L. 
T.  84. 

Congress  may  either  define  directly  by  its  own  act  the  jurisdiction  of  the 
Territorial  courts  created  by  it,  or  delegate  the  authority  requisite  for  that 
purpose  to  the  Territorial  government.  Leitensdorfer  v.  Webb,  20  How. 
176. 

If  Congress,  on  admitting  a  Territory  into  the  Union  as  a  State,  fails 
to  provide  for  Ceases  pending  in  the  Supreme  Court,  it  may  do  so  by  a  sub- 
sequent act..  Freeborn  z/.  Smith,  2  Wall.  160. 


State  Courts. 

Congress  can  not  vest  any  portion  of  the  judicial  power  of  the  United 
States,  except  in  courts  ordained  and  established  by  itself.  Martin  v.  Hunter, 
i  Wheat.  304;  Ely  v.  Peck,  7  Conn.  239  ;  Davison  z/.  Champlin,  7  Conn. 
244  ;  U.  S.  v.  Lathrop,  17  Johns.  4;  Jackson  v.  Rose,  2  Va.  Cas.  34 ;  Hous- 
ton v.  Moore,  5  Wheat,  i ;  S.  C.  3  S.  &  R.  169 ;  Ex  parte  Frank  Knowles, 
5  Cal.  300 ;  State  V.  McBride,  Rice,  400. 

Congress  can  not  compel  a  State  court  to  entertain  jurisdiction  in  any 
case,  for  they  are  not  inferior  courts  in  the  sense  of  the  Constitution.  They 
are  not  ordained  by  Congress.  State  courts  are  left  to  consult  their  own 
duty  from  their  own  State  authority  and  organization.  Stearns  v.  U.  S.  2 
Paine,  300;  Ex  parte  Alexander  Stephens,  70  Mass.  559  ;  Miss.  River  Tel. 
Co.  v.  First  Nat.  Bank,  7  C.  L.  N.  158. 


REMOVAL    FROM    STATE    COURTS.  263 

A  court  is  a  creature  of  the  Constitution  and  laws  under  which  it  exists. 
To  exercise  any  power  not  derived  from  such  Constitution  and  laws  would 
be  a  usurpation.  It  is  not,  therefore,  lawful  for  a  State  court  to  exercise 
jurisdiction  conferred  upon  it  by  an  act  of  Congress.  Ex  parte  Frank 
Knowles,  5  Cal  300. 

Congress  can  not  give  jurisdiction  to  or  require  services  of  any  officer  of 
a  State  government  as  such.  Ex  parte  Wm.  Pool,  2  Va.  Cas.  276 ;  Prigg 
T>.  Comm.  16  Pet.  539. 

The  Constitution  directs  that  all  the  regular  and  permanent  duties  which 
properly  belong  to  a  court  in  the  ordinary  and  popular  signification  of  that 
term  shall  be  performed  by  the  courts  described  therein.  There  is,  there- 
fore, nothing  in  the  Constitution  which  prevents  a  ministerial  officer  or  other 
person  by  law  directed  to  do  and  perform  any  act  which  may  be  necessary 
to  bring  an  accused  party  before  a  court  possessing  the  judicial  power  of 
determining  his  guilt  or  innocence.  Ex  parte  Wm.  Pool,  2  Va.  Cas.  276  ; 
Prigg  v.  Comm.  16  Pet.  539;  Ex  parte  Gist,  26  Ala.  156;  Ex  parte 
Martin,  2  Paine,  348  ;  Ableman  V.  Booth,  21  How.  506  ;  S.  C.  3  Wis.  i, 
145.  157- 

Congress  may  authorize  any  citizen  of  the  United  States  to  perform 
any  act  which  the  Constitution  does  not  require  to  be  performed  in  a  dif- 
ferent manner.  Ex  parte  Wm.  Pool,  2  Va.  Cas.  276 ;  Ex  parte  Gist,  26 
Ala.  156. 

State  Law§. 

The  jurisdiction  of  the  Federal  courts  is  derived  alone  from  the  Consti- 
tution and  laws  of  the  United  States,  and  can  not  be  enlarged,  diminished, 
•or  affected  by  State  laws.  U.  S.  V.  Drennen,  Hemp.  320  ;  Livingston  v. 
Jefferson,  i  Brock.  203. 

A  State  legislature  can  not  confer  jurisdiction  upon  Federal  courts,  or 
prescribe  the  means  or  mode  of  its  exercise.  That  subject  belongs 
-exclusively  to  the  Federal  Government,  and  must  be  regulated  solely  by 
the  Constitution  and  the  laws  of  Congress.  Greely  z/.  Townsend,  25  Cal. 
^04. 

No  State  can  take  away  the  privilege  conferred  upon  citizens  of  other 
States  to  sue  in  the  Federal  courts  by  providing  a  special  remedy  in  its 
own  courts.  Mason  v.  Boom  Company,  3  Wall.  Jr.  252. 


Removal  from  State  €ourt§. 

The  power  to  remove  suits  from  State  courts  to  Federal  courts  is  not  to 
be  found  in  express  terms  in  any  part  of  the  Constitution.     It  is  only  given 


264  CONSTITUTION    OF    THE    UNITED    STATES. 

by  implication,  as  a  power  necessary  and  proper  to  carry  into  effect  some: 
express  power.  The  removal  of  a  cause  is  an  indirect  mode  by  which  the 
Federal  courts  acquire  original  jurisdiction.  Railway  Company  z/.  Whit- 
ton,  1 3  Wall.  270 ;  Martin  v.  Hunter,  I  Wheat.  304. 

Congress  may  provide  for  the  removal  of  cases  over  which  the  Federal 
courts  may  take  jurisdiction,  from  the  State  courts  into  the  Federal  courts. 
Railway  Company  v.  Whitton,  13  Wall.  270;  Fisk  v.  Union  Pacific  R.  R. 
Co.  6  Blatch.  362 ;  Murray  v.  Patrie,  5  Blatch.  343 ;  Mayor  -v  Cooper,  6 
Wall.  247;  Tod?A  Fairfield,  15  Ohio  St.  377;  Clark  v.  Dick,  i  Dill.  8; 
McCormick  v,  Humphrey,  27  Ind.  144;  Johnson  v.  Monell,  I  Wool.  390; 
Martin  v.  Hunter,  I  Wheat.  304;  Hodgson  v.  Millward,  3  Grant,  412; 
Kulp  v.  Ricketts,  3  Grant,  420 ;  contra,  Johnson  v.  Gordon,  4  Cal.  368. 

Where  the  judicial  power  of  the  United  States  can  be  applied  only  be- 
cause the  case  involves  a  controversy  between  citizens  of  different  States, 
it  rests  entirely  with  Congress  to  determine  at  what  time  the  power  may  be 
invoked,  and  upon  what  conditions;  whether  originally  in  the  Federal 
court,  or  after  suit  brought  in  the  State  court ;  and  in  the  latter  case  at  what 
stage  of  the  proceedings,  whether  before^  issue  or  trial  by  removal  to  a 
Federal  court,  or  after  judgment  on  appeal  or  writ  of  error.  Gaines  v. 
Fuentes,  92  U.  S.  10. 

A  case  may  be  removed  from  a  State  court  to  a  Federal  court  where  it 
arises  under  the  Constitution  or  laws  of  the  United  States,  as  well  as 
where  it  arises  between  citizens  of  different  States.  Kulp  v.  Ricketts,  3 
Grant,  420. 

A  statute  requiring  a  foreign  corporation  to  file  an  agreement  not  to 
remove  cases  against  it  into  the  Federal  courts,  as  a  condition  to  the  per- 
mission to  transact  business  in  the  State,  is  void.  Morse  v.  Ins.  Co.  20 
Wall.  445;  S.  C.  30  Wis.  496  ;  Railway  Co.  v.  Pierce,  27  Ohio  St.  155; 
contra,  N.  Y.  Life  Ins.  Co.  v.  Best,  23  Ohio  St.  105 ;  Continental  Ins.  Co. 
v.  Kasey,  13  A.  L.  J.  311. 

If  the  license  to  transact  business  in  the  State  is  made  dependent  upon 
the  condition  that  the  corporation  shall  not  remove  any  case  from  a  State 
to  a  Federal  court,  the  State  may  revoke  the  license  if  such  removal  is 
made.  State  v.  Doyle.  40  Wis.  175 ;  Doyle  v.  Continental  Ins.  Co.  15  A. 
L.  J.  267 ;  contra,  Hartford  Fire  Ins.  Co.  v.  Doyle,  6  Biss.  461. 


Compensation. 

Congress  can  not  create  or  limit  any  other  tenure  of  the  judicial  office, 
or  refuse  to  pay  the  stipulated  salary  of  the  judges  at  stated  times,  or  di- 
minish it  during  their  continuance  in  office.  Martin  v.  Hunter,  I  Wheat. 
304. 


CONSTRUCTION.  265 

Although  Congress  may  establish  courts  of  appellate  jurisdiction,  yet 
such  courts  must  consist  of  judges  appointed  in  the  manner  the  Constitu- 
tion requires,  and  holding  their  offices  by  no  other  tenure  than  that  of 
good  behavior.  Hayburn's  Case,  2  Dall.  409;  U.  S.  v.  Ferreira,  13 
How.  40. 

The  fees  allowed  to  a  justice  of  the  peace,  appointed  in  the  District  of 
Columbia,  can  not  be  diminished  during  his  continuance  in  office.  U.  S.  z/. 
More,  3  Cranch,  160,  note. 


SECTION   II. 

i.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity,  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority  ;  to  all  cases  affect- 
ing ambassadors,  other  public  ministers  and  consuls ; 
to  all  cases  of  admiralty  and  maritime  jurisdiction ;  to 
controversies  to  which  the  United  States  shall  be  a 
party  ;  to  controversies  between  two  or  more  States  ; 
between  a  State  and  citizens  of  another  State  ;  between 
citizens  of  different  States ;  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different 
States  ;  and  between  a  State,  or  the  citizens  thereof, 
and  foreign  States,  citizens  or  subjects. 


Construction. 

The  words  "  shall  extend  "  are  used  in  an  imperative  sense.  They  im- 
port an  absolute  grant  of  judicial  power.  They  can  not  have  a  relative 
signification  applicable  to  powers  already  granted,  for  the  people  had  not 
made  any  previous  grant.  The  Constitution  was  for  a  new  Government 
organized  with  new  substantive  powers,  and  not  a  mere  supplementary 
charter  to  a  Government  already  existing.  Martin  v.  Hunter,  I  Wheat. 
304. 

The  language  of  the  article  throughout  is  manifestly  designed  to  be 
mandatory  upon  the  legislature.  Its  obligatory  force  is  so  imperative  that 
Congress  could  not,  without  a  violation  of  its  duty,  have  refused  to  carry  it 
into  operation.  It  is  a  duty  also  to  vest  the  whole  judicial  power.  The 


266  CONSTITUTION    OF    THE    UNITED    STATES. 

language,  if  imperative  as  to  one  part,  is  imperative  as  to  all.     Martin  v. 
Hunter,  I  Wheat.  304. 

There  are  two  classes  of  cases  enumerated  in  the  Constitution,  between 
which  a  distinction  seems  to  be  drawn.  The  first  class  includes  cases 
arising  under  the  Constitution,  laws  and  treaties  of  the  United  States  ; 
cases  affecting  ambassadors,  other  public  ministers  and  consuls ;  and  cases 
of  admiralty  and  maritime  jurisdiction.  In  this  class  the  expression  is  that 
the  judicial  power  shall  extend  to  all  cases,  but  in  the  subsequent  part  of 
the  clause,  which  embraces  all  other  cases  of  national  cognizance,  the  word 
"  all "  is  dropped,  seemingly  ex  industria.  In  respect  to  the  first  class,  it 
may  well  have  been  the  intention  of  the  framers  of  the  Constitution  imper- 
atively to  extend  the  judicial  power  either  in  an  original  or  appellate  form, 
to  all  cases,  and  in  the  latter  class  to  leave  it  to  Congress  to  qualify  the 
jurisdiction,  original  or  appellate,  in  such  manner  as  public  policy  might 
dictate.  Martin  v.  Hunter,  I  Wheat.  304;  The  Moses  Taylor,  4  Wall. 
411. 

The  Constitution  imposes  no  limitation  upon  the  class  of  cases  involv- 
ing controversies  between  citizens  of  different  States  to  which  the  judicial 
power  of  the  United  States  may  be  extended,  and  Congress  may  therefore 
lawfully  provide  for  bringing,  at  the  option  of  either  of  the  parties,  all  such 
controversies  within  the  jurisdiction  of  the  Federal  judiciary.  Gaines  v. 
Fuentes,  92  U.  S.  10. 

Congress  may  give  the  Federal  courts  original  jurisdiction  in  any  case 
to  which  the  appellate  jurisdiction  extends.  Osborn  v.  Bank,  9  Wheat. 
738. 

The  mere  question  whether  a  collector  of  the  customs  is  indebted  to 
the  United  States,  may  be  one  of  judicial  cognizance.  It  is  competent  for 
the  United  States  to  sue  any  of  its  debtors  in  a  court  of  law.  It  is  equally 
clear  that  the  United  States  may  consent  to  be  sued,  and  may  yield  this 
consent  upon  such  terms  and  under  such  restrictions  as  it  may  think  just. 
Murray  v.  Hoboken  Co.  18  How.  272. 

The  judicial  power  may  extend  to  all  the  cases  enumerated  in  the  Con- 
stitution. As  the  mode  is  not  limited,  it  may  extend  to  all  such  cases  in 
any  form  in  which  judicial  power  may  be  exercised.  It  may,  therefore,  ex- 
tend to  them  in  the  shape  of  original  or  appellate  jurisdiction,  or  both,  for 
there  is  nothing  in  the  nature  of  the  cases  which  binds  to  the  exercise  of 
the  one  in  preference  to  the  other.  Martin  V.  Hunter,  I  Wheat.  304. 

Laws. 

The  legislative,  executive  and  judicial  powers  of  every  well  constructed 
government  are  co-extensive  with  each  other;  that  is,  are  potentially  co-ex- 
tensive. The  executive  department  may  constitutionally  execute  every  law 


LAWS.  267 

which  the  legislature  may  constitutionally  make,  and  the  judicial  power  may 
receive  from  the  legislature  the  power  to  construe  every  such  law.  Bank  of 
U.  S.  v.  Roberts,  4  Conn.  323 ;  Osborn  v.  Bank,  9  Wheat.  738. 

The  power  is  given  in  general  terms.  No  limitation  is  imposed.  The 
broadest  language  is  used.  "All  cases  "  so  arising  are  embraced.  None 
are  excluded.  How  jurisdiction  shall  be  acquired  by  the  inferior  courts, 
whether  it  shall  be  original  or  appellate,  or  original  in  part  and  appellate  in 
part,  and  the  manner  of  procedure  in  its  exercise  after  it  has  been  acquired, 
are  not  prescribed.  The  Constitution  is  silent  on  those  subjects.  They 
are  remitted  without  check  or  limitation  to  the  wisdom  of  the  legislature. 
Mayor  i>.  Cooper,  6  Wall.  247. 

This  clause  enables  the  judicial  department  to  receive  jurisdiction  to  the 
full  extent  of  the  Constitution,  laws  and  treaties  of  the  United  States  when 
any  question  respecting  them  shall  assume  such  a  form  that  the  judicial 
power  is  capable  of  acting  on  it.  That  power  is  capable  of  acting  only 
when  the  subject  is  submitted  to  it  by  a  party  who  asserts  his  rights  in  the 
form  prescribed  by  law.  It  then  becomes  a  case,  and  the  Constitution  de- 
clares that  the  judicial  power  shall  extend  to  all  cases  arising  under  the 
Constitution,  laws  and  treaties  of  the  United  States.  Osborn  v.  Bank,  9 
Wheat.  738. 

The  judicial  power  covers  every  legislative  act  of  Congress,  whether  it 
be  made  within  the  limits  of  its  delegated  powers,  or  be  an  assumption  of 
power  beyond  the  grants  in  the  Constitution.  Ableman  v.  Booth,  21  How. 
506 ;  S.  C.  3  Wis.  i ;  Mayor  v.  Cooper,  6  Wall  247. 

When  a  question  to  which  the  judicial  power  of  the  Federal  Government 
is  extended  by  the  Constitution  forms  an  ingredient  of  the  original  cause,  it 
is  in  the  power  of  Congress  to  give  the  Federal  courts  jurisdiction  of  that 
cause,  although  other  questions  of  fact  or  law  may  be  involved  in  it.  The 
other  questions  may  be  decided  as  incidental  to  that  which  gives  the 
jurisdiction.  Osborn  v.  Bank,  9  Wheat.  738 ;  Mayor  v.  Cooper,  6  Wall. 
247. 

The  right  of  the  plaintiff  to  sue  can  not  depend  on  the  defense  which 
the  defendant  may  choose  to  set  up.  His  right  to  sue  is  anterior  to  that 
defense,  and  must  depend  on  the  state  of  things  when  the  action  is  brought. 
The  questions  which  the  case  involves  must  therefore  determine  its  char- 
acter, whether  those  questions  be  made  in  the  cause  or  not.  Osborn  v. 
Bank,  9  Wheat.  738. 

Whether  the  case  arises  in  the  State  or  Federal  tribunals,  it  is  within 
the  reach  of  this  power.  Mayor  v.  Cooper,  6  Wall.  247. 

Cases  may  arise  under  the  laws  of  the  United  States  by  implication,  so 
that  they  come  under  the  judicial  power  of  the  Federal  Government.  It  is 


268  CONSTITUTION    OF    THE    UNITED    STATES. 

not  unusual  for  a  legislative  act  to  involve  consequences  not  expressed.  An 
officer,  for  example,  is  ordered  to  arrest  an  individual.  It  is  not  necessary, 
nor  is  it  usual,  to  say  that  he  shall  not  be  punished  for  obeying  the  order. 
His  security  is  implied  in  the  order  itself.  The  judicial  power  is  the  instru- 
ment employed  by  the  Government  in  administering  the  security.  Hodgson 
v.  Millward,  3  Grant,  412. 

To  bring  a  case  within  the  judicial  power  of  the  United  States  it  need 
not  be  of  an  unmixed  character.  If  the  principal  right,  the  right  of  prop- 
erty in  the  subject  in  controversy,  is  given  or  created  by  an  act  of  Congress 
made  in  pursuance  of  the  Constitution,  it  is  sufficient.  Bank  of  U.  S.  ^. 
Roberts,  4  Conn.  323. 

The  construction  of  an  act  of  Congress,  when  a  claim  or  a  defense  arises 
out  of  it,  is  within  the  province  of  the  Federal  judiciary.  Hodgson  -z/.  Mill- 
ward,  3  Grant,  412. 

When  a  defendant  seeks  protection  under  a  law  of  the  United  States, 
it  is  a  case  arising  under  that  law.  Hodgson  v.  Millward,  3  Grant,  412  ; 
Kulp  v.  Ricketts,  3  Grant,  420. 

Congress  has  no  constitutional  power  to  settle  the  rights  under  treaties, 
except  in  cases  purely  political.  The  construction  of  them  is  the  peculiar 
province  of  the  judiciary  when  a  case  shall  arise  between  individuals.  Wil- 
son v.  Wall,  6  Wall.  83. 

The  article  does  not  extend  the  judicial  power  to  every  violation  of  the 
Constitution  which  may  possibly  take  place,  but  to  "  a  case  in  law  or  in 
equity,"  in  which  a  right  under  such  law  is  asserted  in  a  court  of  justice. 
If  the  question  can  not  be  brought  into  a  court,  then  there  is  no  case  in  law 
or  equity,  and  no  jurisdiction  is  given  by  the  words  of  the  article.  Cohens 
v.  Virginia,  6  Wheat.  264. 

The  General  Government  has  full  authority  to  appoint  and  commission 
all  courts,  magistrates,  and  officers  to  carry  the  laws  of  Congress  into  effect 
without  necessary  reliance  on  those  of  the  States.  Ex  parte  Alexander 
Stephens,  70  Mass.  559. 

Congress  may  provide  that  a  national  bank  may  sue  and  be  sued  in  the 
Federal  courts.  Magill  v.  Parsons,  4  Conn.  317  ;  Bank  of  U.  S.  v  Roberts, 
4  Conn.  323  :  Bank  of  U.  S.  v.  Northumberland  Bank,  4  Conn.  333  ;  S.  C.  4 
Wash.  108;  Bank  v.  Osborn,  9  Wheat.  738. 

Admiralty. 

The  Constitution  not  only  confers  admiralty  jurisdiction,  but  the  word 
"maritime  "  is  superadded,  seemingly  ex  inditstria,  to  remove  every  latent 
doubt.  "Cases  of  maritime  jurisdiction  "  must  include  all  maritime  con- 
tracts, torts,  and  injuries  which  are  in  the  understanding  of  the  common 


ADMIRALTY.  269 

law,  as  well  as  of  the  admiralty,  "causa  civiles  et  maritime?."  In  this 
view  there  is  a  peculiar  propriety  in  the  incorporation  of  the  term  maritime 
into  the  Constitution.  The  disputes  and  discussions  respecting  what  the 
admiralty  jurisdiction  was  could  not  but  be  well  known  to  the  framers  of 
that  instrument.  One  party  sought  to  limit  it  by  locality,  another  by  the 
subject-matter.  It  was  wise,  therefore,  to  dissipate  all  question  by  giving 
cognizance  of  all  "cases  of  maritime  jurisdiction,"  or  what  is  precisely 
equivalent,  of  all  maritime  cases.  Upon  any  other  construction  the  word 
"maritime"  would  be  mere  tautology;  but  in  this  sense  it  has  a  peculiar 
and  appropriate  force.  De  Lovio  v.  Boit,  2  Gallis.  398  ;  The  Huntress,  2 
Ware,  89  ;  Kynoch  v.  Ives,  Newb.  205  ;  Davis  v.  The  Seneca,  6  Penn.  L.  J. 
213  ;  S.  C.  Gilp.  10 ;  vide  U.  S.  v.  Bedford  Bridge,  I  W.  &  M.  401. 

The  terms  admiralty  and  maritime  belong  to  the  law  of  nations  as  well 
as  to  our  own  domestic  and  municipal  law.  This  is  peculiarly  true  of  the 
former  -admiralty.  A  court  of  admiralty  is  a  court  of  the  law  of  nations, 
and  in  one  branch  of  its  jurisdiction,  that  of  prize,  both  the  law  and  the 
jurisdiction  are  derived  solely  from  the  law  of  nations.  The  Huntress,  2 
Ware,  89. 

The  maritime  law  is  a  part  of  the  common  law.  Thompson  v.  The 
Catharina,  i  Pet.  Ad.  104. 

The  etymology  or  received  use  of  the  words  "  admiralty  "  and  "  mari- 
time jurisdiction,"  include  jurisdiction  of  all  things  done  upon  and  relating 
to  the  sea,  or,  in  other  words,  all  transactions  and  proceedings  relative  to 
commerce  and  navigation,  and  to  damages  or  injuries  upon  the  sea.  De 
Lovio  v.  Boit,  2  Oallis.  398  ;  Scott  v.  The  Young  America,  Newb.  101. 

The  admiralty  and  maritime  jurisdiction  of  the' Federal  courts  covers 
not  merely  the  cognizance  of  the  case,  but  the  jurisprudence  and  principles 
by  which  it  is  to  be  administered.  It  covers  the  whole  maritime  law  ap- 
plicable to  the  case  in  judgment,  without  the  slightest  dependence  upon  or 
connection  with  the  local  jurisprudence  of  the  State  on  the  same  subject. 
The  subject-matter  of  admiralty  and  maritime  law  is  withdrawn  from  State 
legislation,  and  belongs  exclusively  to  the  national  Government  and  its 
proper  functionaries.  The  Chusan,  2  Story,  455. 

Cases  in  admiralty  are  not  identical  with  cases  arising  under  the  laws 
and  Constitution  of  the  United  States.  The  Constitution  clearly  contem- 
plates these  as  three  distinct  classes  of  cases.  Am.  Ins.  Co.  v.  Canter,  I 
Pet.  511. 

The  admiralty  jurisdiction  can  not  be  made  to  depen'd  upon  the  power 
of  Congress  to  regulate  commerce.  They  are  entirely  distinct  things  hav- 
ing no  necessary  connection  with  each  other,  and  are  conferred  in  the  Con- 
stitution by  separate  and  distinct  grants.  The  Belfast,  7  Wall.  624 ;  The 
Genesee  Chief  v.  Fitzhugh,  1 2  How.  443 ;  The  Sarah  Jane,  I  Lowell,  203. 


270  CONSTITUTION    OF    THE    UNITED    STATES. 

A  law  defining  the  jurisdiction  of  certain  courts  of  the  United  States  is 
not  a  regulation  of  commerce.  The  jurisdiction  to  administer  the  laws  re- 
lating to  commerce  is  not  a  regulation  within  the  meaning  of  the  Constitu- 
tion. The  Genesee  Chiefs.  Fitzhugh,  12  How.  443. 

The  power  of  regulating  commerce  with  foreign  nations  and  among  the 
States,  is  granted  by  another  article  of  the  Constitution,  to  the  legislative 
department.  This  covers  the  whole  maritime  commerce  of  the  country. 
The  grant  to  the  judicial  department,  of  the  cognizance  of  all  causes  of 
maritime  jurisdiction,  makes  the  judicial  co-extensive  with  the  legislative 
power.  The  Huntress,  2  Ware,  89. 

The  grant  of  admiralty  power  to  the  Federal  courts  was  not  intended 
to  be  limited  or  to  be  interpreted  by  what  were  cases  of  admiralty  jurisdic- 
tion in  England  when  the  Constitution  was  adopted.  Waring  v.  Clarke,  5 
How.  441 ;  De  Lovio  v.  Boit,  2  Gallis.  398 ;  The  Huntress,  2  Ware,  89 ; 
Kynoch  v.  Ives,  Newb.  205 ;  Steele  v.  Thacher,  i  Ware,  91 ;  Davis  v.  The 
Seneca,  6  Penn.  L.  J.  213;  s.  C.  Gilp.  10;  The  Gold  Hunter,  i  Bl.  £  H. 
300  ;  The  Volunteer,  i  Sum.  551  ;  New  Jersey  Co.  v.  Merchants'  Bank,  6 
How.  344. 

The  admiralty  has  jurisdiction  over  maritime  contracts,  although  the 
voyage  contemplated  begins  and  ends  in  the  State,  and  is  prosecuted  only 
in  waters  within  the  State.  The  Belfast,  7  Wall.  624 ;  The  Elmira  Shep- 
herd, 8  Blatch.  341 ;  Leonard  v.  The  Volunteer,  15  I.  R.  R.  59;  s.  C.  i  C. 
L.  N.  185;  The  Mary  Washington,  i  Abb.  C.  C.  i ;  The  Leonard,  3  Ben. 
263 ;  The  Sarah  Jane,  i  Lowell,  203  ;  Carpenter  v.  The  Emma  Johnson,  i 
Cliff.  633;  s.  C.  i  Sprague,  527;  contra,  Maguire  v.  Card,  21  How.  248; 
The  Troy,  4  Blatch.  355;  Allen  v.  Newberry,  21  How.  244^;  New  Jersey 
Co.  z/.  Merchants'  Bank,  6  How.  344. 

The  admiralty  jurisdiction  extends  to  torts  committed  on  navigable 
waters  although  they  are  committed  within  the  body  of  a  county.  Roberts 
v.  Skolfield,  8  A.  L.  Reg.  156. 

In  cases  purely  dependent  on  the  locality  of  the  act  done,  the  admiralty 
jurisdiction  is  limited  to  the  sea  and  to  tide  waters  as  far  as  the  tide  flows, 
and- does  not  reach  beyond  high-water  mark.  U.  S.  v.  Coombs,  12 
Pet.  72. 

The  cession  of  all  cases  of  admiralty  and  maritime  jurisdiction  is  not 
a  cession  of  the  waters  on  which  those  cases  may  arise.  This  article  is  not 
intended  for  the  cession  of  territory  or  of  general  jurisdiction.  The  general 
jurisdiction  over  the  place  subject  to  this  grant  of  power  adheres  to  the  ter- 
ritory as  a  portion  of  the  sovereignty  of  the  States  not  yet  given  away.  U. 
S.  v.  Bevans,  3  Wheat.  336;  Smith  v.  State,  18  How.  71  ;  Ware  2/.  Hyer, 
2  Paine,  131 ;  s.  C.  I  Bl.  &  H.  235. 


ADMIRALTY.  2jl 

The  power  to  regulate  the  fisheries  belonging  to  the  several  States,  and 
to  punish  those  who  should  transgress  these  regulations,  was  exclusively 
vested  in  the  States  respectively  at  the  time  when  the  Constitution  was 
adopted,  and  was  not  surrendered  to  the  United  States  by  the  mere  grant 
of  admiralty  and  maritime  jurisdiction  to  the  judicial  branch  of  the  Govern- 
ment. Corfield  v.  Coryell,  4  Wash.  C.  C.  371 ;  Bennett  v.  Boggs,  Bald. 
60;  Smith  v.  State,  18  How.  71. 

The  grant  of«  admiralty  and  maritime  jurisdiction  is  a  grant  of  power 
to  Congress  to  legislate  upon  the  subject,  but  without  such  legislation  the  ^ 
Federal  courts  have  no  jurisdiction.     Jackson  v.  The  Magnolia,  20  How. 
296. 

Congress  may  give  the  courts  the  whole  or  so  much  of  the  admiralty 
jurisdiction  as  it  sees  fit.  It  may  extend  their  jurisdiction  over  all  naviga- 
ble waters,  and  all  ships  and  vessels  thereon,  or  over  some  navigable  waters 
and  vessels  of  a  certain  description  only.  Jackson  v.  The  Magnolia,  20 
How.  296 ;  U.  S.  v.  Bevans,  3  Wheat.  336. 

Congress  can  not  create  admiralty  jurisdiction,  because  that  jurisdiction 
is  expressly  granted  to  the  Federal  Government  by  the  Constitution.  Car- 
penter v.  The  Emma  Johnson,  I  Cliff.  633  ;  S.  C.  I  Sprague,  527. 

Congress  may  limit,  or  even  control,  the  exercise  of  admiralty  jurisdic- 
tion, by  modifying  or  repealing  existing  laws  and  enacting  others  in  their 
place.  Carpenter  v.  The  Emma  Johnson,  I  Cliff.  633;  S.  C.  I  Sprague, 
527. 

The  Constitution  does  not  direct  that  the  court  shall  proceed  according 
to  the  ancient  and  established  forms,  or  shall  adopt  any  other  form  or  mode 
of  practice.  The  grant  defines  the  subject  to  which  the  jurisdiction  may 
be  extended  by  Congress,  but  the  extent  of  the  power,  as  well  as  the  mode 
of  proceedings  in  which  that  jurisdiction  is  to  be  exercised,  like  the  power 
and  practice  in  all  other  courts  of  the  United  States,  is  subject  to  the  reg- 
ulation of  Congress,  ^except  where  that  power  is  limited  by  the  terms  of 
the  Constitution,  or  by  necessary  implication  from  its  language.  In  ad- 
miralty and  maritime  cases,  there  is  no  such  limitation  as  to  the  mode  of 
proceeding,  and  Congress  may,  therefore,  in  cases  of  that  description,  give 
either  party  a  right  of  trial  by  jury,  or  modify  the  practice  of  the  court  in 
any  other  respect  that  it  deems  more  conducive  to  the  administration  of 
justice.  Genesee  Chief  v.  Fitzhugh,  12  How.  443. 

The  authority  of  Congress  under  this  clause  does  not  extend  to  punish  y 
offenses  committed  above  and  beyond  high-water  mark.    U.  S.  v.  Coombs, 
12  Pet.  72. 

A  State  legislature  has  no  power  to  create  a  maritime  lien.  The  Bel- 
fast, 7  Wall.  624. 


272  CONSTITUTION    OF    THE    UNITED    STATES. 

No  State  law  can  regulate  the  lien  for  materials  and  supplies  furnished 
to  a  foreign  vessel.  The  Chusan,  2  Story,  455. 

A  State  statute  conferring  a  lien  for  repairs  made  on  domestic  ships  is 
constitutional.  The  Chusan,  2  Story,  455  ;  The  Belfast,  7  Wall.  624. 

It  is  not  competent  for  the  States  by  any  local  legislation  to  enlarge,  or 
limit  or  narrow,  the  admiralty  and  maritime  jurisdiction  of  the  Federal 
courts.  In  the  exercise  of  this  jurisdiction  they  are  exclusively  governed 
by  the  legislation  of  Congress,  and  in  the  absence  thereof  by  the  general 
principles  of  the  maritime  law.  The  States  have  no  right  to  prescribe  the 
rules  by  which  the  Federal  courts  shall  act,  nor  the  jurisprudence  which 
they  shall  administer.  If  any  other  doctrine  were  established,  it  would 
amount  to  a  complete  surrender  of  the  jurisdiction  of  the  Federal  courts 
to  the  fluctuating  policy  and  legislation  of  the  States.  If  the  latter  have  a 
right  to  prescribe  any  rule,  they  have  a  right  to  prescribe  all  rules,  to  limit, 
control  or  bar  suits  in  the  national  courts.  Such  a  doctrine  has  never 
been  supported.  The  Chusan,  2  Story,  455. 


Foreign  Nations. 

An  Indian  tribe  within  the  United  States  is  not  a  foreign  State,  and  can 
not  maintain  an  action  in  the  Federal  courts.  Cherokee  Nation  v.  State,  5 
Pet.  i. 

,    . 
How  far  Exclusive. 

As  there  is  no  express  negation  of  jurisdiction  to  the  State  courts  in  the 
specified  cases,  their  jurisdiction  is  not  taken  away,  except  as  to  such  of 
the  cases  as  they  did  not  before  hold  cognizance  of,  and  such  as,  from  the 
nature  of  the  jurisdiction,  they  could  not  hold  cognizance  of,  from  the  in- 
compatibility between  the  powers  granted  to  the  courts  of  the  United 
States  and  a  reservation  of  any  portion  of  the  same  powers  to  the  State 
courts.  U.  S.  i).  Lathrop,  17  Johns.  4;  Jackson  i>.  'Rose,  2  Va.  Cas.  34; 
State  v.  Randall,  2  Aik.  89 ;  Ho'uston  v.  Moore,  5  Wheat,  i  ;  s.  C.  3  S.  & 
R.  169;  TealT/.  Felton,  12  How.  284;  Delafield  V.  State,  2  Hill,  159. 

The  judicial  power  of  the  United  States  is  unavoidably  in  some  cases 
exclusive  of  all  State  authority,  and  in  all  others  may  be  made  so  at  the 
election  of  Congress.  Martin  v.  Hunter,  i  Wheat.  304 ;  The  Moses  Tay- 
lor, 4  Wall.  411. 

The  State  tribunals  can  now  constitutionally  exercise  concurrent  juris- 
diction with  the  Federal  courts  only  in  those  cases  where  previous  to  the 
Constitution  they  possessed  jurisdiction  independent  of  national  authority. 
Martin  v.  Hunter,  i  Wheat.  304. 


HOW    FAR    EXCLUSIVE.  273 

There  are  several  classes  of  cases  where  the  State  courts  have  con- 
stantly exercised  concurrent  powers,  although  the  Federal  courts  have 
jurisdiction.  The  following  cases  may  be  mentioned  :  i.  Where  the 
United  States  sue.  2.  Where  a  State  sues  a  citizen  of  another  State.  3. 
Where  a  State  sues  an  alien.  4.  Where  a  citizen  of  one  State  sues  a 
citizen  of  another  State.  5.  Where  a  citizen  sues  an  alien.  6.  Where  an 
alien  sues  a  citizen.  Delafield  V.  State,  2  Hill,  159. 

The  State  courts  may  entertain  jurisdiction  of  cases  arising  under  the 
laws  of  the  United  States,  with  or  without  an  express  provision  in  the  acts 
of  Congress,  not  as  a  matter  of  constitutional  obligation,  but  upon  those 
principles  of  comity  which  authorize  the  courts  of  every  civilized  State  to 
administer  law  and  justice  to  suitors,  although  not  citizens  of  the  State. 
Bank  of  U.  S.  v.  Roberts,  4  Conn.  323 ;  Houston  v.  Moore,  5  Wheat.  I ; 
s  C.  3  S.  &  R.  169;  Jackson  v.  Rose,  2  Va.  Cas.  34 ;  Claflin  v.  House- 
man, 93  U.  S.  130. 

So  far  as  the  judicial  power  is  to  be  invoked  in  the  execution  of  a 
treaty,  it  is  exclusive  in  the  Federal  courts.  Ex  parte  Juan  Leon,  I  Edm. 
Sel.  Cas.  311. 

The  Federal  courts  have  cognizance  of  all  those  cases  which  are  em- 
braced in  the  first  three  clauses,  because  they  are  cases  arising  under  the 
limited  legislation  of  a  government  of  limited  powers.  Of  all  those  classes 
of  cases  their  jurisdiction  is  exclusive.  In  all  the  other  enumerated  classes 
their  jurisdiction  is  concurrent  with  the  State  courts.  State  v.  McBride, 
Rice,  400. 

The  admiralty  and  maritime  jurisdiction  is  vested  exclusively  in  the 
Federal  courts.  Martin  v.  Hunter,  I  Wheat.  304. 

The  State  courts  may  entertain  an  action  to  recover  a  penalty  for  the 
breach  of  a  Federal  statute.  To  sustain  such  a  suit  is  not  administering 
the  criminal  law  of  the  United  States.  An  action  for  a  penalty  is  a  civil 
action  both  in  form  and  in  substance.  It  is  founded  upon  that  implied 
contract  which  every  person  enters  into  with  the  Government  to  observe 
its  laws.  Stearns  v.  U.  S.  2  Paine,  300 ;  Claflin  v.  Houseman,  93  U.  S. 
130  ;  Buckwalter  v.  U.  S.  1 1  S.  &  R.  193  ;  contra,  Haney  v.  Sharp,  I  Dana, 
442;  Ely  v.  Peck,  7  Conn.  239;  Davison  z/.  Champlin,  7  Conn.  244;  U.  S. 
v.  Lathrop,  17  Johns.  4;  Jackson  v.  Rose,  2  Va.  Cas.  34. 

No  part  of  the  criminal  jurisdiction  of  the  United  States  can  consist- 
ently with  the  Constitution  be  delegated  to  State  tribunals.  Martin  v. 
Hunter,  i  Wheat.  304;  State  v.  McBride,  Rice,  400  ;  State  v.  Wells,  2 
Hill  (S.  C.)  687;  Comm.  v.  Feely,  i  Va.  Cas.  321;  Huber  v.  Reily,  53 
Penn.  112. 

The  commission  of  a  crime  against  a  national  bank,  which  is  not  made 
an  offense  by  an  act  of  Congress,  does  not  constitute  a  question  or  case 
arising  under  the  Constitution  or  laws  of   the  United  States,  and  the 
18 


274  CONSTITUTION    OF    THE    UNITED    STATES. 

State  courts  have  jurisdiction  to  try  the  same.     State  v.  Buchanan,  5  H.  & 
J-  317. 

A  State  court  may  punish  the  offense  of  counterfeiting  national  bank 
notes,  under  a  State  law,  although  the  act  is  punishable  under  the  statutes 
of  the  United  States,  unless  they  have  vested  exclusive  jurisdiction  over 
the  crime  in  the  Federal  courts.  State  v.  Randall,  2  Ark.  89 ;  State  v^ 
Tutt,  2  Bailey,  44;  White  V.  Comm.  4  Binn.  418. 

A  State  court  has  jurisdiction  to  punish  the  forgery  of  a  land  warrant, 
where  it  has  not  been  made  a  crime  by  a  Federal  statute.  Comm.  v» 
Schaffer,  4  Ball.  App.  xxvi. 

A  State  magistrate  may  commit  a  prisoner  in  order  that  he  may  be  de- 
livered over  for  prosecution  to  the  United  States.  Ex  parte  Smith,  5  Cow. 
273;  Ex  parte  Gist,  26  Ala.  156;  Ex  parte  Wm.  Pool,  2  Va.  Cas.  276; 
Prigg  v.  Comm.  16  Pet.  539  ;  Ex  parte  Martin,  2  Paine,  348. 

2.  In  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  State  shall 
be  party,  the  Supreme  Court  shall  have  original  ju- 
risdiction. In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions,  and  under 
such  regulations  as  the  Congress  shall  make. 

Construction. 

The  first  clause  declares  the  extent  of  the  judicial  power,  and  the 
second  clause  prescribes  the  form,  whether  original  or  appellate,  in  which 
the  Supreme  Court  shall  exercise  its  jurisdiction.  The  latter  clause  con- 
fers no  new  powers,  but  only  specifies  the  manner  in  which  the  powers  al- 
ready granted  shall  be  exercised,  so  far  as  the  Supreme  Court  is  concerned. 
The  words,  "in  all  other  cases  before  mentioned,"  plainly  show  that  the 
second  clause  refers  only  to  those  cases  to  which  the  judicial  power  has 
been  extended  by  the  first  clause.  The  power  can  not  be  enlarged  by  a 
mere  declaration  prescribing  the  form,  original  and  appellate,  in  which  it 
shall  be  exercised.  Delafield  v.  State,  2  Hill,  1 59 ;  Pennsylvania  v.  Quick- 
silver Co.  10  Wall.  553. 

Every  part  of  the  article  must  be  taken  into  view,  and  that  construc- 
tion adopted  which  will  consist  with  its  words,  and  promote  its  general  in- 
tention. The  court  may  imply  a  negative  from  affirmative  words  where 
the  implication  promotes,  not  where  it  defeats,  the  intention.  Cohens  v. 
Virginia,  6  Wheat.  264. 

Original  Jurisdiction. 

It  is  left  to  Congress  to  organize  the  Supreme  Court,  to  define  its  pow- 
ers consistently  with  the  Constitution  as  to  its  original  jurisdiction,  and  to 


ORIGINAL   JURISDICTION.  275 

distribute  the  residue  of  the  judicial  power  between  it  and  the  inferior 
courts.  Rhode  Island  z>.  Massachusetts,  12  Pet.  657;  Chisholm  v. 
Georgia,  2  Dall.  490. 

Congress  can  not  assign  original  jurisdiction  to  the  Supreme  Court  in 
cases  other  than  those  specified  in  this  article.  Marbury  v.  Madison,  I 
Cranch,  1 37 ;  Ex  parte  Clement  L.  Vallandigham,  I  Wall.  243  ;  Ex  parte 
Yerger,  8  Wall.  85. 

The  original  jurisdiction  of  the  Supreme  Court,  in  cases  where  a 
State  is  a  party,  refers  to  those  cases  in  which,  according  to  the  grant  of 
power  made  in  the  preceding  clause,  jurisdiction  might  be  exercised  in 
consequence  of  the  character  of  the  party,  and  an  original  suit  might  be 
instituted  in  any  of  the  Federal  courts,  not  to  those  cases  in  which  an 
original  suit  might  not  be  instituted  in  a  Federal  court.  Of  the  last  de- 
scription is  every  case  between  a  State  and  its  citizens,  and  perhaps 
every  case  in  which  a  State  is  enforcing  its  penal  laws.  In  such  cases  the 
Supreme  Court  can  not  take  original  jurisdiction.  Cohens  v.  Virginia,  6 
Wheat.  264. 

A  case  which  belongs  to  the  jurisdiction  of  the  Supreme  Court,  on 
account  of  the  interest  which  a  State  has  in  the  controversy,  must  be  a 
case  in  which  a  State  is  either  nominally  or  substantially  a  party.  It  is  not 
sufficient  that  a  State  may  be  consequentially  affected.  Fowler  v.  Lindsey, 
3  Dall.  411. 

To  give  the  Supreme  Court  jurisdiction,  a  State  must  be  a  party  on  the 
record.  The  fact  that  the  State  is  a  member  of  a  corporation  which  is  a 
party,  does  not  make  it  a  party.  Bank  v.  Planter's  Bank,  9  Wheat.  904. 

The  fact  that  land  has  been  granted  by,  and  is  claimed  under  a  State, 
does  not  make  the  State  a  party  to  a  controversy,  between  private  persons 
concerning  that  land.  Fowlers.  Lindsey,  3  Dall.  411. 

The  Supreme  Court  is  made  the  chosen  arbiter  to  judge  and  determine 
the  disputes  and  controversies  that  may  arise  between  the  respective 
States,  and  not  each  State  in  its  individual  capacity.  Chancely  v.  Bailey, 
37  Geo.  532. 

A  State  can  not  prosecute  a  suit  in  the  Supreme  Court  on  the  ground 
of  any  remote  or  contingent  interest  in  itself,  but  if  it  has  a  direct  interest 
in  the  controversy,  the  jurisdiction  will  be  sustained.  State  v.  Wheeling- 
Bridge  Co,  13  How.  518. 

A  State  may  bring  an  original  suit  in  the  Supreme  Court  against  a  cit- 
izen of  ?nother  State,  but  not  against  one  of  her  own.     Pennsylvania  v* 
•  Quicksilver  Co.  10  Wall.  553. 

The  Supreme  Court  has  jurisdiction  of  questions  of  boundary  between 
two  States,  although  the  decision  involves  the  construction  of  compacts  or 
agreements  between  the  States,  or  affects  the  territorial  limits  of  the  polit- 


276  CONSTITUTION    OF    THE    UNITED    STATES. 

ical  jurisdiction  and  sovereignty  of  the  States.    Virginia  v.  West  Virginia, 
ii  Wall.  39;  Rhode  Island  v.  Massachusetts,  12  Pet.  657. 

A  question  of  boundary  between  States  is  within  the  original  jurisdic- 
tion of  the  Supreme  Court.  Florida  v.  Georgia,  17  How.  478. 

The  Supreme  Court  has  no  jurisdiction  over  questions  of  a  political  and 
not  judicial  character.  State  v.  Stanton,  6  Wall.  50  ;  Cherokee  Nation  v. 
State,  5  Pet.  i. 

Although  Congress  has  the  right  to  prescribe  the  process  and  mode  of 
proceeding  in  cases  where  the  Supreme  Court  has  original  jurisdiction  as 
fully  as  in  any  other  court,  yet  the  omission  to  legislate  on  the  subject  does 
not  deprive  the  court  of  the  jurisdiction  conferred.  In  the  absence  of  any 
legislation  by  Congress,  the  court  itself  may  prescribe  the  mode  and  form 
of  proceedings  so  as  to  attain  the  ends  for  which  jurisdiction  was  given. 
Florida  v.  Georgia,  17  How.  478. 

The  original  jurisdiction  of  the  Supreme  Court  is  special  and  limited, 
and  its  action  must  be  confined  to  the  particular  cases,  controversies  and 
parties  over  which  the  Constitution  has  authorized  it  to  act.  Any  action 
without  the  limits  prescribed  is  coram  non  judice,  and  its  action  a  nullity. 
Rhode  Island  v.  Massachusetts,  12  Pet.  657. 

A  motion  to  dismiss  for  want  of  jurisdiction  may  be  made,  even  after 
a  plea  to  the  merits.  Rhode  Island  v.  Massachusetts,  12  Pet.  657. 

Where  a  State  is  a  party  plaintiff  or  defendant,  the  governor  represents 
the  State,  and  the  suit  may  be  in  form  a  suit  by  him  as  governor  in  behalf 
of  the  State  where  the  State  is  plaintiff,  and  he  must  be  summoned  or  noti- 
fied as  the  officer  representing  the  State  where  the  State  is  defendant. 
Comm  v.  Dennison,  24  How.  66. 

Where  a  question  of  boundary  is  in  dispute  between  two  States,  the 
United  States  may  intervene  if  it  has  any  interest  in  the  controversy,  and 
produce  proof.  Florida  v.  Georgia,  17  How.  478. 

An  indictment  against  a  private  person  for  an  assault  upon  an  ambas- 
sador or  public  minister,  is  not  a  case  affecting'  such  ambassador  or  minis- 
ter. U.  S.  v.  Ortega,  1 1  Wheat.  467. 

A  State  court  is  deprived  of  jurisdiction  over  an  offense  committed  by  a 
consul  against  the  laws  of  the  State.  Comm.  v.  Kosloff,  5  S  &  R.  546; 
contra,  State  v.  De  La  Foret,  2  N.  &  M.  217. 

The  Supreme  Court  has  no  original  jurisdiction  of  a  proceeding  by  a 
private  individual  who  is  an  alien,  to  obtain  redress  for  a  wrong  done  him' 
by  another  private  individual  who  is  a  citizen.  Ex  parte  Barry,  2  How.  65. 

Although  the  Constitution  vests  in  the  Supreme  Court  original  jurisdic- 
tion in  suits  affecting  ambassadors,  ministers  and  consuls,  it  does  not  pre- 


APPELLATE    JURISDICTION.  277 

elude  Congress  from  exercising  the  power  of  vesting  a  concurrent  jurisdic- 
tion in  such  inferior  courts  as  may  by  law  be  established.  St.  Luke's  Hos- 
pital v.  Barclay,  3  Blatch.  259;  Graham  v.  Stucken,  4  Blatch.  50;  U.  S.  v. 
Ravara,  2  Dall.  297;  Gittings  v.  Crawford,  Tan.  i. 

A  State  may  be  authorized  to  sue  in  the  inferior  courts.  State  z>.  Atkins 
35  Geo.  315 ;  contra,  State  z/.  Trustees,  5  B.  R.  466;  S.  C.  I  Hughes,  133. 

Appellate  Jurisdiction. 

Appellate  jurisdiction  is  given  by  the  Constitution  to  the  Supreme  Court 
in  all  cases  where  it  has  not  original  jurisdiction,  subject,  however,  to  such 
exceptions  and  regulations  as  Congress  may  prescribe.  It  is  therefore  ca- 
pable of  embracing  every  case  enumerated  in  the  Constitution  which  is  not 
exclusively  to  be  decided  by  way  of  original  jurisdiction.  Martin  v.  Hunter, 
i  Wheat.  304. 

In  every  case  to  which  judicial  power  extends  and  in  which  original 
jurisdiction  is  not  expressly  given  to  the  Supreme  Court,  its  judicial  power 
must  be  exercised  in  the  appellate  and  only  in  the  appellate  form.     The      / 
original  jurisdiction  can  not  be  enlarged,  but  its  appellate  jurisdiction  may    ' 
be  exercised  in  every  case  cognizable  under  this  article  in  the  Federal  courts 
in  which  original  jurisdiction  can  not  be  exercised.     Cohens  v.  Virginia,  6 
Wheat.  264. 

The  appellate  powers  of  the  Supreme  Court  are  limited  and  regulated 
by  the  acts  of  Congress,  and  must  be  exercised  subject  to  the  exceptions 
and  regulations  made  by  Congress.  Ex  parte  Clement  L.  Vallandigham, 
I  Wall  243 ;  Durousseau  v.  U.  S.  6  Cranch,  307 ;  Barry  z/.  Mercein,  5 
How.  103;  U.  S.  v.  Moore,  7  Cranch,  159;  Ex  parte  McCardle,  7  Wall. 
506;  Murdock  v.  Memphis,  20  Wall.  590 ;  Martin  v.  Hunter,  I  Wheat.  304. 

The  Supreme  Court  can  not  exercise  appellate  jurisdiction  over  the  Court 
of  Claims.  Gordon  v.  U.  S.  2  Wall.  561. 

In  prize  cases  the  Supreme  Court  can  exercise  appellate  jurisdiction 
only.  A  case  can  not  be  docketed  unless  there  is  an  order,  decree  or  judg- 
ment in  some  inferior  court,  for  appellate  jurisdiction  necessarily  implies 
some  judicial  determination,  some  judgment,  decree  or  order  of  an  inferior 
tribunal  from  which  an  appeal  is  taken.  The  Alivia,  7  Wall.  571. 

The  Supreme  Court  may  be  vested  with  the  power  to  issue  a  writ  of 
habeas  corpus  to  release  a  person  committed  by  an  inferior  court,  for  the 
writ  is  appellate  in  its  nature.  Ex  parte  Bollman,  4  Cranch,  73  ;  Ex  parte 
Burford,  3  Cranch,  448;  U.  S.  v.  Hamilton,  3  Dall.  17;  Ex  parte  Kearney, 
7  Wheat.  38. 

The  appellate  power  of  the  Supreme  Court  is  not  limited  by  the  terms 
of  this  article  to  any  particular  courts.  The  words  are  "  in  all  other  cases 


278  CONSTITUTION    OF    THE    UNITED    STATES. 

before  mentioned  the  Supreme  Court  shall  have  appellate  jurisdiction."  It 
is  the  case,  then,  and  not  the  court,  that  gives  jurisdiction.  The  Con- 
stitution not  only  contemplated,  but  meant  to  provide  for  cases  within  the 
scope  of  the  judicial  power  of  the  United  States  which  might  yet  depend 
before  State  tribunals.  It  was  foreseen  that  in  the  exercise  of  their  ordi- 
nary jurisdiction  State  courts  would  incidentally  take  cognizance  of  cases 
arising  under  the  Constitution,  the  laws,  and  treaties  of  the  United  States. 
Yet  to  all  these  cases  the  judicial  power,  by  the  very  terms  of  the  Consti- 
tion,  is  to  extend.  The  appellate  power  of  the  United  States  must,  there- 
fore, in  such  cases,  extend  to  State  tribunals  ;  and  if  in  such  cases,  there  is 
no  reason  why  it  should  not  equally  attach  upon  all  others  within  the  pur- 
view of  the  Constitution.  Martin  it.  Hunter,  I  Wheat.  304 ;  Piqua  Bank 
v.  Knoup,  6  Ohio  St.  342;  Dodge  v.  Woolsey,  18  How.  331  ;  Cohens  v. 
Virginia,  6  Wheat.  264;  Ableman  v.  Booth,  21  How.  506;  S.  C.  3  Wis.  i  ; 
Ferris  v.  Coover,  u  Cal.  175;  contra,  Hunter  v.  Martin,  4  Munf.  i ;  John- 
son v.  Gordon,  4. Cal.  368. 

The  principle  on  which  the  appellate  jurisdiction  of  the  Supreme  Court 
over  the  State  courts  is  allowed  is,  that  no  government  can  be  efficient  or 
just  without  the  means  of  self-protection.  And  hence,  that  those  who  act 
under  it,  or  claim  rights  beneath  the  shield  of  its  laws  should,  within  its 
own  territory,  be  able  to  appeal  to  its  own  tribunals  for  relief.  Scott  v. 
Jones,  5  How.  343. 

The  provisions  of  the  Constitution  do  not  imply  that  the  States  will  be 
willfully  disregardful  of  the  obligations  solemnly  placed  upon  them  by  the 
people,  but  that  there  maybe  interferences  from  their  legislation,  either  with 
the  Constitution  or  between  their  enactments  and  those  of  Congress.    This 
suggested  the  necessity,  or  rather  made  it  obvious,  that  the  National  Union 
would  be  incomplete  and  altogether  insufficient  for  the  great  ends  contem- 
plated, unless  a  constitutional  arbiter  was  provided  to  give  certainty  and  uni- 
formity in  all  of  the  States  to  the  interpretation  of  the  Constitution  and  the 
legislation  of  Congress,  with  powers  to  declare  judicially  what  acts  of  the 
legislatures  of  the  States  might  be  in  conflict  with  either.    Had  this  not  been  ' 
clone,  there  would  have  been  no  mutuality  of  constitutional  obligation  be- 
tween the  States,  either  in  respect  to  the  Constitution  or  the  laws  of  Con- 
gress, and  each  of  them  would  have  determined  for  itself  the  operation  of 
both,  either  by  legislation  or  judicial  action ;  in  either  way  exempting  itself 
and  its  citizens  from  engagements  which  it  had  not  made  by  itself,  but  in 
common  with  other  States  of  the  Union  equally  sovereign,  by  which  they 
bound  their  sovereignties  to  each  other,  that  neither  of  them  should  assume 
to  settle  a  principle  or  interest  for  itself  in  a  matter  which  was  the  common 
interest  0f  all  of  them.     Such  is  certainly  the  common-sense  view  of  the 
people  when  any  number  of  them  enter  into  a  contract  for  their  mutual 
benefit  in  the  same  proportions  of  interest.     In  such  a  case  neither  should 
assume  the  right  to  bind  his  compeers  by  his  judgment  as  to  the  stipulations 
of  their  contract.     Dodge  if.  Woolsey,  18  How.  331  ;  Ableman  V.  Booth,  21 
How.  506  ;  s.  c  3  Wis.  i . 


MODE    AND    PLACE    OF    TRIAL.  ,      279 

The  exercise  of  appellate  jurisdiction  is  far  from  being  limited  by 
the  terms  of  the  Constitution  to  the  Supreme  Court.  There  can  be  no 
•doubt  that  Congress  may  create  a  succession  of  inferior  tribunals,  in  each 
of  which  it  may  vest  appellate  as  well  as  original  jurisdiction.  The  judicial 
power  is  delegated  by  the  Constitution  in  the  most  general  terms,  and  may 
therefore  be  exercised  by  Congress  under  every  variety  of  form  of  appellate 
or  original  jurisdiction.  As  there  is  nothing  in  the  Constitution  which  re- 
strains or  limits  this  power,  it  must  therefore  in  all  other  cases  subsist  in 
the  utmost  latitude  of  which  in  its  own  nature  it  is  susceptible.  Martin  v. 
Hunter,  I  Wheat.  304;  s.  C.  4  Munf.  I. 

None  but  the  Supreme  Court  can  entertain  jurisdiction  by  way  of  appeal 
from  the  judgments  of  State  courts  in  cases  originally  cognizable  and  com- 
menced in  those  courts;  and  any  act  of  Congress  giving  such  jurisdiction 
to  any  inferior  court  of  the  United  States  would  be  unconstitutional  and 
void.  Wetherbee  v.  Johnson,  14  Mass.  412  ;  Patrie  v.  Murray,  43  Barb. 


3.  The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by  jury  ;  and  such  trial  shall  be 
held  in  the  State  where  the  said  crime  shall  have  been 
committed  ;  but  when  not  committed  within  any  State, 
the  trial  shall  be  at  such  place  or  places  as  the  Congress 
may,  by  law,  have  directed. 

The  provisions  of  this  clause  are  applicable  to  proceedings  in  the  Federal 
courts  only.  Murphy  v.  People,  2  Cow.  815. 

A  proceeding  to  annul  the  license  of  a  pilot  for  neglect  of  duty  is  not  a 
criminal  proceeding.  Low  v.  Commissioners,  R.  M.  Charlt.  302. 

A  citizen  in  civil  life,  in  no  wise  connected  with  the  military  service, 
can  not  be  tried  by  a  military  commission  in  a  place  where  the  Federal  au- 
thority is  unopposed,  and  its  courts  open  to  hear  criminal  accusations  and 
redress  grievances.  Ex  parte  Milligan,  4  Wall.  2. 

A  statute  which  provides  that  a  party  may  be  tried  by  the  court  on  a 
charge  of  libel  is  void,  although  it  gives  him  the  right  to  appeal  to  another 
court  where  the  charge  must  be  tried  by  a  jury.  The  accused  is  entitled 
not  to  be  first  convicted  by  a  court,  and  then  to  be  acquitted  by  a  jury,  but 
to  be  acquitted  or  convicted  in  the  first  instance  by  a  jury.  Ex  parte 
Charles  A.  Dana,  7  Ben.  I. 

The  form  of  asking  a  prisoner  how  he  will  be  tried  is  wholly  unneces- 
sary. This  provision  is  imperative  upon  the  courts,  and  prisoners  can  be 
lav/fully  tried  in  no  other  manner.  As  soon,  therefore,  as  it  judicially  ap- 


280  CONSTITUTION    OF    THE    UNITED    STATES. 

pears  of  record  that  the  party  has  pleaded  not  guilty,  there  is  an  issue  in 
a.  criminal  case  which  the  courts  are  bound  to  direct  to  be  tried  by  a  jury. 
U.  S.  -z/.  Gilbert,  2  Sum.  19. 

A  statute  to  confiscate  the  property  of  persons  engaged  in  rebellion,  in 
any  district  in  which  it  may  be  found,  is  void.  Norris  v.  Doniphan,  4  Met. 
(Ky.)  385- 

A  crime  committed  against  the  laws  of  the  United  States  out  of  the 
limits  of  a  State  is  not  local,  but  may  be  tried  at  such  place  as  Congress 
shall  designate  by  law.  United  States  v.  Dawson,  15  How.  467. 

SECTION    III. 

i.  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to- 
their  enemies,  giving  them  aid  and  comfort.  No  per- 
son shall  be  convicted  of  treason  unless  on  the  testi- 
mony of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court. 

It  is  consonant  to  the  principles  of  the  Constitution  that  the  crime  of 
treason  shall  not  be  extended  by  construction.  Ex  parte  Bollman,  4 
Cranch,  75. 

However  flagitious  may  be  the  crime  of  conspiring  to  subvert  the  Gov- 
ernment by  force,  such  conspiracy  is  not  treason.  To  conspire  to  levy 
war,  and  actually  to  levy  war,  are  distinct  offenses.  The  first  must  be 
brought  into  open  action  by  the  assemblage  of  men  for  a  purpose  treason- 
able in  itself,  or  the  fact  of  levying  war  is  not  committed.  Ex  parte  Boll- 
man, 4  Cranch,  75 ;  U.  S  v.  Mitchell,  2  Ball.  348. 

There  must  be  an  actual  assemblage  of  men  for  a  treasonable  purpose 
to  constitute  a  levying  of  war.  Ex  parte  Bollman,  4  Cranch,  75. 

The  assemblage  of  men  for  the  purpose  of  carrying  into  operation  the 
treasonable  intent,  which  will  amount  to  levying  war,  must  be  an  assem- 
blage in  force.  U.  S.  v.  Burr,  2  Burr's  Trial,  401 ;  U.  S.  v.  Hoxie,  I  Paine, 

265. 

To  constitute  a  levying  of  war  there  must  be  an  assemblage  of  persons 
in  force  to  overthrow  the  Government  or  coerce  its  conduct.  The  words 
embrace  not  only  those  acts  by  which  war  is  brought  into  existence,  but 
also  those  acts  by  which  war  is  prosecuted.  They  levy  war  who  create  or 
carry  on  war.  U.  S.  v.  Greathouse,  2  Abb.  C.  C.  364. 

If  a  body  of  men  is  actually  assembled  for  the  purpose  of  effecting  by 


TREASON.  28l 

force  a  treasonable  purpose,  all  those  who  perform  any  part,  however 
minute  or  however  remote  from  the  scene  of  action,  and  who  are  actually 
leagued  in  the  general  conspiracy,  are  to  be  considered  as  traitors.  Ex 
parte  Bollman,  4  Cranch,  75. 

Those  who  perform  a  part  in  the  prosecution  of  the  war,  may  correctly 
be  said  to  levy  war  and  to  commit  treason  under  the  Constitution.  U.  S_ 
i>.  Burr,  2  Burr's  Trial,  401. 

When  a  body,  large  or  small,  of  armed  men,  is  mustered  in  military  ar- 
ray for  a  treasonable  purpose,  every  step  which  any  of  them  takes  in  part 
execution  of  that  purpose,  is  an  overt  act  of  levying  war,  though  not  a  war- 
like blow  may  have  been  struck.  The  marching  of  such  a  corps  with  such 
a  purpose,  in  the  direction  in  which  a  blow  might  be  struck,  is  levying  war.. 
U.  S  v.  Greiner,  4  Phila.  396. 

It  is  not  necessary  that  there  should  be  any  military  array  or  weapons. 
The  crime  may  be  committed  by  those  not  personally  present  at  the  imme- 
diate scene  of  violence,  if  they  are  leagued  with  the  conspirators  and  per- 
form any  part,  however  minute.  Druecker  v.  Salomon,  21  Wis.  621. 

The  occupation  of  a  fortress  by  a  body  of  men  in  military  array,  in 
order  to  detain  it  against  the  Government,  is  treason  on  the  part  of  all 
concerned,  either  in  the  occupation  or  detention  of  the  post.  U.  S.  v. 
Greiner,  4  Phila.  396. 

If  a  party  joins  and  marches  with  rebels,  the  only  force  which  excuses 
him  on  the  ground  of  compulsion,  is  force  upon  the  person  and  present 
fear  of  death,  which  force  and  fear  must  continue  during  all  the  time  of 
military  service  with  the  rebels.  U.  S.  v.  Greiner,  4  Phila.  396;  U.  S.  v. 
Hodges,  2  Wheel.  Cr.  Cas.  477. 

The  overt  act  and  the  intention  constitute  the  treason,  for  without  the 
intention  the  treason  is  not  complete.  U.  S.  v.  Fries,  2  Whart.  St.  Tr. 
458 ;  vide  U.  S.  v.  Hodges,  2  Wheel.  Cr.  Cas.  477. 

The  mere  enlistment  of  men  for  service  does  not  amount  ta  levying 
war.  Ex  parte  Bollman,  4  Cranch,  75. 

War  levied  against  the  United  States  by  citizens  of  the  Republic,  under 
the  pretended  authority  of  a  rebellious  State,  or  of  Confederate  States,  is 
treason  against  the  United  States.  Shortridge  v.  Macon,  Chase,  136. 

The  offense  is  complete,  whether  the  force  be  directed  to  the  entire 
overthrow  of  the  Government  throughout  the  country,  or  only  in  certain 
portions  of  the  country,  or  to  defeat  the  execution  and  compel  the  repeal 
of  one  of  its  public  laws.  U .  S.  v.  Greathouse,  2  Abb.  C.  C.  364. 

The  resistance  of  the  execution  of  a  law  of  the  United  States,  accom- 


282  CONSTITUTION    OF    THE    UNITED    STATES. 

4 

parried  with  any  degree  of  force,  if  for  a  private  purpose,  is  not  treason. 
To  constitute  that  offense,  the  object  of  the  resistance  must  be  of  a  public 
and  general  nature.  U.  S.  v.  Hanway,  2  Wall.  Jr.  140;  U.  S.  v,  Hoxie,  I 
Paine,  265  ;  U.  S.  v.  Fries,  2  Whart.  St.  Tr.  458. 

An  assemblage  by  force,  to  prevent  the  operation  or  compel  the  repeal 
of  a  single  act,  is  treason  by  levying  war  against  the  United  States.  U.  S. 
*v.  Fries,  2  Whart.  St.  Tr.  458  ;  U.  S.  v.  Mitchell,  2  Dall.  348  ;  U.  S.  v.  Han- 
way,  2  Wall.  Jr.  140. 

Where  the  object  of  the  assemblage  is  to  prevent  the  operation  or  com- 
pel the  repeal  of  a  law,  force  is  necessary  to  complete  the  crime,  but  the 
•quantum  of  force  is  immaterial.  U.  S.  z/.  Fries,  2  Whart.  St.  Tr.  458. 

The  following  elements  therefore  constitute  this  offense  :  ist.  A  combi- 
nation or  conspiracy,  by  which  different  individuals  are  united  in  one  com- 
mon purpose.  2d.  This  purpose  must  be  to  prevent  the  execution  of  some 
public  law  of  the  United  States.  3d.  The  actual  use  of  force  by  such  com- 
bination, to  prevent  the  execution  of  such  law.  Druecker  v.  Salomon,  21 
Wis.  621. 

The  delivery  of  prisoners  to  the  enemy  is  high  treason  against  the 
United  States.  U.  S.  v.  Hodges,  2  Wheel.  Cr.  Cas.  477. 

If  a  party  being  with  an  enemy's  squadron,  comes  to  the  shore  with  the 
intention  to  peaceably  procure  provisions  for  the  use  of  the  enemy,  but 
stops  short  before  anything  is  effected,  this  does  not  constitute  an  overt 
act  of  treason  by  adhering  to  the  enemy.  U.  S.  v.  Pryor,  3  Wash.  C.  C. 
234. 

The  term  "enemies"  applies  only  to  the  subjects  of  a  foreign  power  in 
a  state  of  open  hostility  with  the  United  States.  It  does  not  embrace 
rebels  in  insurrection  with  their  own  Government.  U.  S.  v,  Greathouse,  2 
Abb.  C.  C.  364;  U.  S.  v.  Cheneweth,  4  West.  L.  Mo.  165. 

The  provision  that  no  person  shall  be  convicted  of  treason  unless  upon 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court,  applies  only  to  the  trial  of  indictments,  and  is  inapplicable  to 
proceedings  before  grand  juries,  or  to  preliminary  investigations.  U.  S.  •z/. 
Greiner,  4  Phila.  396. 

2.  The  Congress  shall  have  power  to  declare  the 
punishment  of  treason,  but  no  attainder  of  treason  shall 
work  corruption  of  blood  or  forfeiture,  except  during 
the  life  of  the  person  attainted. 

» 

This  provision  does  not  apply  to  the  confiscation  of  enemies'  property, 
even  though  those  enemies  are  rebels  against  the  Government,  and  there- 
fore guilty  of  treason.  Confiscation  Cases,  I  Woods,  221. 


PUBLIC    RECORDS.  283 

ARTICLE   IV. 

SECTION  I. 

i.  Full  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  State.  And  the  Congress  may,  by  gen- 
eral laws,  prescribe  the  manner  in  which  such  acts, 
records  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

The  provision  had  for  its  object  to  prevent  any  such  weakening  of  the 
bonds  of  the  Federal  Union  as  might  follow  from  the  States  disregarding 
what  was  due  to  courtesy  and  comity  when  their  respective  proceedings 
should  come  under  consideration,  and  opening  anew  the  controversies  and' 
questions  which  in  the  jurisdiction  having  properly  and  primarily  the  con- 
trol of  them  had  once  been  determined.  Its  object  was,  so  far  as  judg- 
ments are  concerned,  to  preclude  their  being  disregarded  in  other  States 
when  a  proper  tribunal,  with  competent  jurisdiction,  had  rendered  them. 
People  v.  Dawell,  25  Mich.  247. 

This  section  has  three  distinct  objects  :  I .  To  declare  that  full  faith  and 
credit  shall  be  given  in  each  State  to  the  public  acts,  records  and  judicial 
proceedings  of  every  other  State.  2.  The  manner  of  authenticating  such 
public  acts,  records  and  judicial  proceedings ;  and  3.  Their  effect  when  so 
authenticated.  Green  v.  Sarmiento,  3  Wash.  C.  C.  17  ;  S.  C.  I  Pet.  C.  C. 
74;  Bissell  v.  Briggs,  9  Mass.  462;  Comm.  v.  Green,  17  Mass.  514. 

By  the  first  member  of  this  clause,  the  framers  of  the  Constitution  in- 
tended a  general  declaration  that  the  records  of  the  courts  of  the  several 
States  should  be  treated  with  great  respect  by  full  faith  and  credit  being 
given  to  them  in  every  other  State.  But  as  this  general  declaration  was 
not  defined  with  accuracy,  and  was  subject  to  be  misunderstood,  they  pro- 
ceeded further  to  declare  that  Congress  might,  by  a  general  law,  mark  out 
the  effect  and  define  the  general  power  thus  given.  Curtis  v.  Gibbs,  2  N. 
J-  399- 

The  latter  part  of  this  clause  was  intended  to  provide  the  means  of 
giving  to  judgments  the  conclusiveness  of  judgments  upon  the  merits  when 
it  is  sought  to  carry  them  into  judgments  by  suits  in  the  tribunals  of  an- 
other State.  The  authenticity  of  a  judgment  and  its  effect  depend  upon 
the  law  made  in  pursuance  of  the  Constitution  ;  the  faith  and  credit  due  to 
it  as  the  judicial  proceeding  of  a  State,  is  given  by  the  Constitution  inde- 
pendently of  all  legislation.  M'Elmoyle  v.  Cohen,  13  Pet.  312. 


284  CONSTITUTION    OF    THE    UNITED    STATES. 

This  clause  does  not  mean  that  all  the  effects  and  consequences  of  a 
litigation  in  one  State  shall  follow  it  into  another.  The  rule  that  "  Us  pen- 
dens  "  is  notice  to  all  the  world  is  limited  to  all  persons  within  the  jurisdic- 
tion of  the  State  where  the  suit  was  pending.  Shelton  z/.  Johnson,  4. 
Sneed,  672. 

This  clause  was  not  designed  to  extend  the  jurisdiction  of  local  courts, 
or  to  extend  beyond  its  just  limits,  the  operation  of  a  local  decree,  but  to 
provide  a  mode  of  authenticating  evidence  of  the  record  of  a  judicial  pro- 
ceeding had  in  one  State,  so  that  the  proper  general  result  of  it  might  be 
conveniently  attained  in  every  other  State,  against  persons  and  things 
justly  within  the  range  of  the  proceeding.  Bowen  v.  Johnson,  5  R.  I.  112. 

It  is  manifest  that  the  Constitution  contemplated  a  power  in  Congress 
to  give  a  conclusive  effect  to  judgments  in  the  State  courts,  otherwise  this 
clause  would  be  utterly  unimportant  and  illusory.  The  common  law  would 
make  such  judgments  fir z ma  facie  evidence  in  the  courts  of  another  State. 
Mills  v.  Duryee,  7  Cranch,  481 ;  M'Elmoyle  v.  Cohen,  13  Pet.  312;  War- 
ren Manuf.  Co.  z/.  Etna  Ins.  Co.  2  Paine,  501 ;  Green  v.  Sarmiento,  3 
Wash.  17 ;  s.  C.  i  Pet.  C.  C.  74. 

Congress  may  declare  what  shall  be  the  effect  of  a  judgment  of  a  State 
court  in  another  State.  M'Elmoyle  v.  Cohen,  13  Pet.  312;  Green  v.  Sar- 
miento, 3  Wash.  17 ;  S.  C.  I  Pet.  C.  C.  74. 

This  clause  places  judgments  in  another  State  on  a  different  footing 
from  what  are  commonly  called  foreign  judgments,  and  gives  them  all  the 
force  and  effects  of  judgments  in  every  State.  Oldens  v.  Hallet,  3  N.  J. 
466;  Gibbons  v.  Livingston,  6  N.  J.  236;  Gibbons  v.  Ogden,  6  N.  J.  285. 

The  terms  "  faith  and  credit "  evidently  point  to  the  attributes  and 
qualities  which  such  records  and  judicial  proceedings  shall  have  as  evi- 
dence. Brengle  2/.  McClellan,  7  G.  &  J.  434;  Joice  v.  Scales,  18  Geo.  725 ; 
Shelton  v.  Johnson,  4  Sneed,  672  ;  M'Elmoyle  v.  Cohen,  13  Pet.  312  ;  Car- 
ter v.  Bennett,  6  Fla.  214;  Wilson  v.  Robertson,  I  Tenn.  266. 

The  Constitution  has  effected  no  change  in  the  nature  of  a  judgment. 
It  only  provides  that,  as  a  matter  of  evidence,  it  shall  be  entitled  to  full 
credit.  In  marshaling  the  assets  of  an  insolvent  estate,  a  judgment  re- 
covered in  another  State  only  ranks  as  a  simple  contract,  and  is  not  put 
upon  the  footing  of  judgments  rendered  in  the  State.  M'Elmoyle  v.  Cohen, 
13  Pet.  312  ;  Harness  v.  Green,  20  Mo.  316 ;  Brengle  v.  McClellan,  7  G.  & 
J.  434 ;  Cameron  v.  Wurtz,  4  McCord,  278  ;  vide  Colt's  Estate,  4  W.  &  S. 
3H. 

This  clause  does  not  give  validity  to  a  void  decree .  Ogden  v.  Saund- 
ers,  12  Wheat.  213;  Vanuxem  v.  Hazlehursts,  4  N.  J.  192. 

The  collision  of  a  decree  with  a  prior  decree  of  the  same  court,  is  not 
embraced  by  this  provision,  Mitchell  v.  Lenox,  14  Pet.  49. 


PUBLIC    RECORDS.  285 

The  records  and  judicial  proceedings  to  which  full  faith  and  credit  are 
to  be  given,  are  only  such  as  are  duly  rendered  by  a  court  of  competent 
jurisdiction  against  those  who  appeared  to  defend,  or  were  duly  notified  to 
appear.  Aldrich  v.  Kenney,  4  Conn.  380 ;  Bissell  v.  Briggs,  9  Mass.  462. 

The  Constitution  does  not  confer  upon  Congress  to  give  to  a  judgment 
obtained  in  one  State  all  the  legal  properties,  rights  and  attributes  to  which 
it  is  entitled  by  the  law  of  the  State  where  it  was  rendered.  Brengle  v. 
McClellan,  7  G.  &  J.  434. 

The  Constitution  makes  no  distinction  between  courts  of  record  and 
those  which  are  not  such ;  nor  between  courts  of  the  highest  and  most 
general  jurisdiction  and  those  tribunals  whose  authority  is  of  the  most  lim- 
ited and  inferior  character.  Taylor  v.  Barron,  30  N.  H.  78. 

A  judgment  rendered  before  a  justice  of  the  peace  is  within  the  pro- 
vision of  the  Constitution,  although  his  court  is  not  a  court  of  record  Sil- 
ver Lake  Bank  v.  Harding,  5  Ohio,  545 ;  Pelton  v.  Platner,  13  Ohio,  209. 

Congress  has  the  power  to  declare  the  effect  and  provide  the  mode  of 
authenticating  the  records  and  judicial  proceedings  of  the  courts  of  the  re- 
spective territories  and  countries  subject  to  the  jurisdiction  of  the  United 
States.  Hughes  v.  Davis,  8  Md.  271;  Duvall  v.  Fearson,  18  Md  502; 
contra,  Seton  v.  Hanahan,  R.  M.  Charlt.  374;  Adams  v.  Day,  33  Conn. 
419;  Haggin  v.  Squires,  2  Bibb,  334. 

This  clause  relates  only  to  judgments  in  civil  actions,  and  not  to  judg- 
ments on  criminal  prosecutions.  It  has  no  effect  whatever  on  judgments 
upon  criminal  suits,  and  in  this  respect  the  relation  of  the  States  to  each 
other  is  wholly  unaffected  by  the  Constitution.  Comm.  v.  Green,  17  Mass. 
514. 

A  State  may  provide  that  an  action  of  debt  may  be  maintained  on  a 
judgment  rendered  in  the  courts  of  another  State,  for  a  State  may  give  to 
such  judgment  any  effect  it  may  think  proper,  so  that  it  does  not  derogate 
from  the  effect  secured  by  the  Constitution  and  the  acts  of  Congress.  Bis- 
sel  v.  Briggs,  9  Mass.  462. 

A  State  law  which  declares  that  no  action  shall  be  maintained  on  any 
judgment  rendered  without  the  State  against  any  person  who  at  the  time  of 
the  commencement  of  the  suit  was  a  resident  of  the  State  in  any  case  where 
the  cause  of  action  would  have  been  barred  by  any  act  of  limitations  of  the 
State,  is  void.  Christmas  v.  Russell,  5  Wall.  290 ;  Dodge  v.  Coffin,  1 5 
Kans.  277. 

Prescription  is  a  thing  of  policy  growing  out  of  its  experience,  and  the 
time  after  which  suits  or  actions  shall  be  barred  has  been  from  a  remote 
antiquity  fixed  by  every  nation,  in  virtue  of  that  sovereignty  by  which  it 
exercises  its  legislation  for  all  persons  and  property  within  its  jurisdiction. 


286  CONSTITUTION    OF    THE    UNITED    STATES. 

The  States,  in  the  exercise  of  this  right,  may  limit  the  time  for  remedies 
upon  the  judgments  of  other  States,  fixing  a  less  or  larger  time  than  that 
of  the  common  law  to  raise  a  presumption  of  payment,  or  altogether  bar 
suits  upon  such  judgments,  if  they  are  not  brought  within  the  time  stated 
in  the  statute.  A  plea  of  the  statute  of  limitations  is  a  plea  to  the  remedy, 
and  consequently  the  lex  fort  must  prevail.  M'Elmoyle  v.  Cohen,  13  Pet. 
312  ;  Bacon  v.  Howard,  20  How._22. 

The  law  of  a  State  may  fix  different  times  for  barring  the  remedy  in  a 
suit  upon  a  judgment  of  another  State,  and  upon  a  judgment  of  its  own 
tribunals.  M'Elmoyle  v.  Cohen,  13  Pet.  312;  Bacon  v.  Howard,  20  How. 
22 ;  Robinson  v.  Peyton,  4  Tex.  276. 

The  probate  of  a  will,  being  but  a  decree  in  rem,  is  confined  in  its  oper- 
ation to  things  within  the  State  setting  up  the  court  which  takes  the  pro- 
bate. "  Full  faith  and  credit "  is  given  to  it  abroad  when  the  same  faith 
and  credit  is  given  to  it  which  it  has  at  home,  and  that  is,  that  it  is  to  be 
conclusive  evidence  of  the  validity  of  the  will  as  affording  title  to  things 
within  the  jurisdictional  limits  of  the  court  at  the  death  of  the  testator, 
whether  such  title  comes  in  contest  within  or  without  those  limits,  but  de 
jure  no  evidence  whatever  of  title  to  things  not  then  within  those  limits. 
Bowen  v.  Johnson,  5  R.  I.  112;  Olney  v.  Angell,  5  R.  I.  198. 

A  discharge  from  imprisonment  for  debt  under  the  laws  of  one  State^ 
will  not  prevent  an  arrest  under  the  laws  of  another  State.  Joice  v.  Scales, 
18  Geo.  725. 

SECTION   II. 

i.  The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several 
States. 

These  expressions  are  confined  to  those  privileges  and  immunities  which 
are  in  their  nature  fundamental,  which  belong  of  right  to  the  citizens  of  all 
free  governments,  and  which  have  at  all  times  been  enjoyed  by  the  citizens 
of  the  several  States  which  compose  this  Union  from  the  time  of  their  be- 
coming free,  independent  and  sovereign.  What  these  fundamental  privi- 
leges are,  it  would  perhaps  be  more  tedious  than  difficult  to  enumerate. 
They  may,  however,  be  all  comprehended  under  the  following  general 
heads :  to  wit,  protection  by  the  government ;  the  enjoyment  of  life  and 
liberty,  with  the  right  to  acquire  and  possess  property  of  every  kind,  and  to 
pursue  and  obtain  happiness  and  safety,  subject,  nevertheless,  to  such  re- 
straints as  the  government  may  justly  prescribe  for  the  general  good  of  the 
whole.  The  right  of  a  citizen  of  one  State  to  pass  through  or  to  reside  in 
any  other  State  for  purposes  of  trade,  agriculture,  professional  pursuits  or 
otherwise ;  to  claim  the  benefit  of  the  writ  of  habeas  corpus;  to  institute 


CITIZENS    OF    STATES.  287 

and  maintain  actions  of  any  kind  in  the  courts  of  the  State ;  to  take,  hold 
and  dispose  of  property,  either  real  or  personal;  an  exemption  from  higher 
taxes  or  impositions  than  are  paid  by  the  other  citizens  of  the  State  ;  may 
be  mentioned  as  some  of  the  particular  privileges  and  immunities  of  citizens 
which  are  clearly  embraced  by  the  general  description  of  privileges  deemed 
to  be  fundamental ;  to  which  may  be  added  the  elective  franchise,  as  regu- 
lated and  established  by  the  laws  and  Constitution  of  the  State  in  which  it 
is  to  be  exercised.  These  and  many  others  which  might  be  mentioned, 
are,  strictly  speaking,  privileges  and  immunities.  Corfield  v.  Coryell,  4 
Wash.  C.  C.  371 ;  Bennett  v.  Boggs,  Bald.  60;  Comm.  v,  Milton,  12  B. 
Mon.  212. 

Privilege  and  immunity  are  synonymous,  or  nearly  so.  Privilege  signi- 
fies a  peculiar  advantage,  exemption,  immunity ;  immunity  signifies  exemp- 
tion, privilege.  Campbell  v.  Morris,  3  H.  &  McH.  535. 

This  clause  means  that  the  citizens  of  all  the  States  shall  have  the  pe- 
culiar advantage  of  acquiring  and  holding  real  as  well  as  personal  prop- 
erty, and  that  such  property  shall  be  protected  and  secured  by  the  laws  of 
the  State  in  the  same  manner  as  the  property  of  the  citizens  of  the  State  is 
protected.  It  means  that  such  property  shall  not  be  liable  to  any  taxes  or 
burdens  which  the  property  of  the  citizens  is  not  subject  to.  It  secures 
and  protects  personal  rights.  Campbell  v.  Morris,  3  H.  &  McH.  535; 
Ward  v.  Morris,  4  H.  &  McH.  330. 

A  particular  and  limited  operation  is  to  be  given  to  these  words,  and 
not  a  full  and  comprehensive  one.  They  do  not  mean  the  right  of  election, 
the  right  of  holding  office,  or  the  right  of  being  elected.  Campbell  v. 
Morris,  3  H.  &  McH.  535;  Murray  v.  McCarty,  2  Munf.  393;  Allen  V. 
Sarah,  2  Harring.  434 ;  Smith  v.  Moody,  26  Ind.  299. 

This  clause  does  not  exempt  the  citizen  of  another  State  from  any  con- 
dition which  the  laws  of  the  State  impose  upon  its  own  citizens,  nor  confer 
upon  him  any  privilege  which  the  law  gives  to  particular  persons  for  special 
purposes,  or  upon  prescribed  conditions.  Comm.  z/.  Milton.  12  B.  Mon. 
212. 

This  clause  does  not.  apply  to  a  person  who,  being  a  citizen  of  a  State, 
migrates  to  another  State,  for  then  he  becomes  subject  to  .the  laws  of  the 
State  in  which  he  lives,  and  he  is  no  longer  a  citizen  of  the  State  from  which 
he  removed.  The  State  in  which  he  resides  may  then  determine  his  status 
or  condition,  and  deny  him  the  privileges  and  immunities  enjoyed  by  other 
citizens.  Dred  Scott  v.  Sandford,  19  How.  393 ;  Bradwell  v.  State,  16  Wall. 
130;  contra,  Abbott  v.  Bayley,  23  Mass.  89. 

An  individual  who  permanently  resides  and  is  domiciled  in  a  State,  and 
who  is  entitled  to  all  the  privileges  and  immunities  of  a  citizen  of  that  State, 
can  not  be  regarded  otherwise  than  as  a  citizen  of  that  State.  Comm.  v. 
Towles,  5  Leigh,  743. 


288  CONSTITUTION    OF    THE    UNITED    STATES. 

The  citizens  of  other  States  are  not  to  be  deemed  aliens.  They  are  not 
to  be  accounted  as  foreigners,  or  as  persons  who  may  become  enemies. 
They  are  to  have  the  right  to  carry  on  business  ;  to  inherit  and  transmit 
property  ;  to  enter  upon,  reside  in,  and  remove  from  the  territory  of  each 
State  at  their  pleasure,  yielding  obedience  to,  and  receiving  protection  from, 
the  laws.  Such  are  some  of  the  privileges  and  immunities  conferred  by 
this  clause,  and  all  that  are  granted  by  it  are  of  the  same  character.  State 
<v.  Medbury,  3  R.  I.  138. 

No  privileges  are  secured  by  this  clause,  except  those  which  belong  to 
citizenship.  Rights  attached  by  the  law  to  contracts  by  reason  of  the  place 
where  such  contracts  are  made  or  executed,  wholly  irrespective  of  the  citi- 
zenship of  the  parties  to  those  contracts,  can  not  be  deemed  "  privileges  of 
a  citizen"  within  the  meaning  of  the  Constitution.  Conner  v.  Elliott,  18 
How.  591. 

This  clause  relieves  citizens  from  the  disabilities  of  alienage  in  other 
States.  It  inhibits  discriminating  legislation  against  them  by  other  States. 
It  gives  them  the  right  of  free  ingress  into  other  States,  and  egress  from 
them.  It  insures  to  them  in  other  States  the  same  freedom  possessed  by 
the  citizens  of  those  States  in  the  acquisition  and  enjoyment  of  property, 
and  in  the  pursuit  of  happiness ;  and  it  secures  to  them  in  other  States  the 
equal  protection  of  their  laws.  Paul  v.  Virginia,  8  Wall.  168. 

So  far  as  the  mere  rights  of  persons  are  concerned,  this  provision  is 
confined  to  citizens  of  a  State  who  are  temporarily  in  another  State  without 
taking  up  their  residence  there.  It  gives  them  no  political  rights  in  the 
State  as  to  voting  or  holding  office,  or  in  any  other  respect,  for  a  citizen  of 
one  State  has  no  right  to  participate  in  the  government  of  another.  But 
if  he  ranks  as  a  citizen  in  the  State  to  which  he  belongs,  then  whenever  he 
goes  into  another  State,  the  Constitution  clothes  him,  as  to  the  rights  of 
persons,  with  all  the  privileges  and  immunities  which  belong  to  citizens  of 
the  State.  Dred  Scott  v.  Sandford,  19  How.  393. 

This  clause  gives  to  the  citizens  of  each  State  entire  freedom  of  inter- 
course with  every  other  State,  and  any  law  which  attempts  to  deny  them 
free  ingress  or  egress  is  void.  Lemmon  v.  People,  20  N.  Y.  562  ;  s.  C.  2 
Sandf.  68 1  ;  26  Barb.  270. 

The  right  of  transit  through  each  State,  with  every  species  of  property 
known  to  the  Constitution,  and  recognized  by  that  paramount  law,  is 
secured  by  that  instrument  to  each  person,  and  does  not  depend  on  the 
uncertain  and  changeable  ground  of  every  mere  comity.  Ex  parte 
Archy,  9  Cal.  147  ;  Willard  v.  People,  5  111.  461 ;  Julia  v.  McKinney,  3  Mo. 
270. 

This  clause  secures  and  protects  the  right  of  a  citizen  of  one  State  to 
pass  into  any  other  State  for  the  purpose  of  engaging  in  lawful  commerce. 


CITIZENS    OF    STATES.  289 

trade,  or  business,  without  molestation ;  to  acquire  personal  property  ;  to 
take  and  hold  real  estate ;  and  to  maintain  actions  in  the  courts  of  the 
State.  Ward  v.  Maryland,  12  Wall.  418  ;  s.  C.  31  Md.  279. 

The  main  object  of  this  clause  was  to  prevent  each  State  from  discrim- 
inating in  favor  of  its  own  people,  or  against  those  of  any  other.  It  se- 
cures not  only  absolute  equality  of  rights,  and  privileges  with  every  citizen 
of  each  State,  but  all  such  privileges  and  immunities  in  any  State  as  are 
by  the  laws  and  Constitution  thereof  secured  and  extended  to  her  own 
people  of  the  same  class  and  otherwise  similarly  situated.  Davis  v.  Pierce, 
7  Minn.  13. 

When  in  the  regulation  of  any  subject  of  internal  police,  a  regard  to 
justice  and  the  due  and  convenient  enforcement  of  its  laws  require  a  State 
to  adopt  a  different  mode  of  proceeding,  or  a  modification  of  the  regulation 
in  respect  to  persons  residing  out  of  the  State,  in  order  to  fairly  meet  and 
provide  for  the  circumstance  of  their  non-residence,  the  competency  of  the 
State  so  to  act  is  not  taken  away  by  this  clause.  Baker  v.  Wise,  16  Gratt. 
139- 

This  clause  was  not  intended  to  give  the  laws  of  any  one  State  the 
slightest  force  in  another  State.  It  secures  to  the  citizens  of  each  State  in 
every  other  State,  not  the  laws,  or  peculiar  privileges  which  they  may  be 
entitled  to  in  their  own  State,  but  such  protection  and  benefit  of  the  laws 
of  any  and  every  other  State  as  are  common  to  the  citizens  thereof  in  virtue  \* 
of  their  being  citizens.  They  do  not,  by  force  of  this  clause,  acquire  any 
peculiar  privileges  in  another  State,  except  upon  the  condition  on  which 
they  may  be  held  or  enjoyed  by  the  citizens  of  such  other  State.  Comm. 
v.  Milton,  12  B.  Mon.  212;  Reynolds  v.  Geary,  26  Conn.  179;  Paul  v. 
Virginia,  8  Wall.  168 ;  Lemmon  v.  People,  5  Sandf.  681  ;  S.  C.  20  N.  Y. 
562  ;  26  Barb.  270. 

A  marked  distinction  has  always  been,  made  between  the  rights  and 
powers  of  the  citizens  of  a  State  and  the  rights  and  powers  of  all  other 
persons  resident  within  the  limits  of  the  State,  whether  they  are  citizens  of 
other  States  or  foreigners.  State  v.  Medbury,  3  R.  I.  138. 

This  clause  is  intended  to  secure  the  citizens  of  one  State  against  dis- 
criminations made  by  another  State  in  favor  of  its  own  citizens,  and  not  to 
secure  the  citizens  of  any  State  against  discriminations  made  by  their  own 
State  in  favor  of  the  citizens  of  other  States,  nor  to  secure  one  class  of 
citizens  against  discriminations  made  between  them  and  another  class  of 
citizens  of  the  same  State.  Comm.  v.  Griffin,  3  B.  Mon.  208. 

A  citizen  of  the  State  whose  laws  are  complained  of,  can  not  claim  the 
protection  afforded  by  this  clause.  Bradwell  v.  State,  16  Wall.  130. 

The  citizens  of  other  States  are  not  entitled  to  greater  privileges  than 
the  State  grants  to  its  own  citizens.     Lemmon  v.  People,  26  Barb.  270; 
S.  C.  5  Sandf.  68 1  ;  20  N.  Y.  562. 
19 


2QO  CONSTITUTION    OF    THE    UNITED    STATES. 

Where  the  laws  of  the  several  States  differ,  a  citizen  of  one  State  as- 
serting rights  in  another  must  claim  them  according  to  the  laws'  of  that 
State,  and  not  according  to  those  which  obtain  in  his  own  State.  Lem- 
mon  v.  People,  26  Barb.  270 ;  s.  C.  5  Sandf.  68 1  ;  20  N.  Y.  562. 

No  State  can  pass  a  law  to  punish  a  sale  of  property  in  another  State 
where  the  right  exists  by  the  laws  of  the  locality  to  make  such  a  sale. 
People  v.  Merrill,  2  Parker  C.  C.  590. 

The  Constitution  makes  the  people  of  the  United  States  subjects  of  one 
government  quoad  everything  within  the  national  power  and  jurisdiction, 
but  leaves  them  subjects  of  separate  and  distinct  governments.  Abbott  v. 
Bayley,  23  Mass.  89. 

It  is  most  probable  that  the  clause  was  intended  to  compel  the  general 
Government  to  extend  the  same  privileges  to  the  citizens  of  every  State, 
and  not  permit  that  Government  to  grant  privileges  or  immunities  to  citi- 
zens of  some  of  the  States  and  withhold  them  from  those  of  others,  and  was 
never  designed  to  interfere  with  the  local  policy  of  the  State  governments 
as  to  their  own  citizens.  Kincaid  v.  Francis,  Cooke,  49. 

The  clause  may  also  mean  that  the  citizens  of  other  States  shall  be  on 
the  same  footing  with  citizens  of  the  State,  in  the  payment  of  the  debts  of 
a  deceased  debtor.  Campbell  v.  Morris,  3  H.  &  McH.  535. 

The  word  "  citizen,"  excludes  every  description  of  persons  who  were 
not  fully  recognized  as  citizens  in  the  several  States  at  the  time  of  the 
adoption  of  the  Constitution,  and  foreigners  who  have  become  citizens  of 
some  one  of  the  States  since  that  time,  without  naturalization.  Dred 
Scott  v.  Sandford,  19  How.  393;  Davis  v.  Pierse,  7  Minn.  13. 

The  word  "  citizen,"  means  citizens  of  the  United  States.  It  does  not 
authorize  every  one  whom  either  of  the  States  may  recognize  as  a  citizen, 
or  may  elevate  to  State  citizenship,  to  demand  in  every  State  all  the  privi- 
leges and  immunities  accorded  to  its  citizens.  Davis  v.  Pierse,  7  Minn.  13. 

The  right  to  vote  does  not  necessarily  render  a  party  a  citizen.  For- 
eigners not  naturalized  may  be  allowed  to  vote,  yet  this  clause  would  not 
apply  to  them.  Dred  Scott  v.  Sandford,  19  How.  393. 

The  citizens  here  spoken  of,  are  those  who  are  entitled  to  all  the  privi- 
leges and  immunities  of  citizens.  The  meaning  of  the  language  is,  that  no 
privilege  enjoyed  by,  or  immunity  allowed  to  the  most  favored  class  of  cit- 
izens of  the  State,  shall  be  withheld  from  a  citizen  of  any  other  State. 
State  V.  Claiborne,  Meigs,  331. 

The  word  "  citizen,"  imports  the  same  as  the  word  "  freeman,"  and 
means  every  person  who  by  birth  or  naturalization  is,  or  may  be  qualified 
to  exercise  and  enjoy  under  like  circumstances,  all  the  rights  which  any 


CITIZENS    OF    STATES.  29 1 

native-born  white  inhabitant  of  the  State,  does  or  can  enjoy.     Douglass 
-v.  Stephens,  I  Del.  Ch.  465. 

A  person  may  be  a  citizen,  that  is  a  member  of  the  community  who 
form  the  sovereignty,  although  he  exercises  no  share  of  the  political  power, 
and  is  incapacitated  from  holding  particular  offices.  Women  and  minors 
who  form  a  part  of  the  political  family,  can  not  vote,  and  when  a  property 
qualification  is  required,  to  vote  or  hold  a  particular  office,  those  who  have 
not  the  necessary  qualification  can  not  vote  or  hold  the  office,  yet  they  are 
citizens.  Dred  Scott  v.  Sandford,  19  How.  393. 

A  free  man  of  color,  born  within  the  United  States,  is  a  citizen  of  the 
United  States.  Smith  v.  Moody,  26  Ind.  299 ;  contra,  Amy  v.  Smith,  I 
Litt.  326 ;  Pendleton  v.  State,  6  Ark.  509 ;  Hickland  v.  State,  8  Blackf. 
365;  States.  Cooper,  5  Blackf.  258;  Baptiste  v.  State,  5  Blackf.  283 ; 
Shaw  v.  Brown,  35  Miss.  246. 

The  privileges  and  immunities  are  annexed  to  the  status  of  citizenship. 
They  are  personal,  and  can  not  be  assigned  or  imparted  to  any  other  person, 
natural  or  artificial.  Slaughters.  Comm.  13  Gratt.  767. 

The  term  "  citizens,"  applies  only  to  natural  persons,  members  of  the 
body  politic,  owing  allegiance  to  the  State,  not  to  artificial  persons  created 
by  the  legislature,  and  possessing  only  the  attributes  which  the  legislature 
has  prescribed.  Paul  v.  Virginia,  8  Wall.  168. 

Corporations  are  not  citizens  of  the  State  which  creates  them,  and  can 
not  be  brought  within  the  guaranty  so  as  to  entitle  the  corporations  of 
•each  State  to  all  privileges  and  immunities  of  corporations  in  the  several 
States.  Slaughters.  Comm.  13  Gratt.  767;  Paul  v.  Virginia,  8  Wall.  168; 
Bank  v.  Earle,  13  Pet.  519;  Ducat  v.  Chicago,  48  111.  172;  Comm.  v. 
Milton,  12  B.  Mon.  212  ;  Tatem  v.  Wright,  23  N.  J.  429  ;  Fire  Department 
v.  Helfevistein,  16  Wis.  136;  State  v.  Lathrop,  10  La.  Ann.  398;  Warren 
Manuf.  Co.  v.  ./Etna  Ins.  Co.  2  Paine,  501  ;  People  v.  Imlay,  20  Barb.  68 ; 
Phcenix  Ins.  v.  Comm.  5  Bush,  68  ;  F.  &  M.  Ins.  Co.  z/.  Hurrah,  47  Ind. 
236. 

A  statute  imposing  a  tax  upon  foreign  corporations,  to  which  domestic 
corporations  are  not  subjected,  is  not  inconsistent  with  this  clause.  Att. 
Gen.  v.  Bay  State  Mining  Co.  99  Mass.  148;  Ducat  v.  Chicago,  48  111. 
172;  Phcenix  Ins.  Co.  v.  Comm.  5  Bush,  68;  Comm.  v.  Milton,  12  B.  Mon. 
212;  People  v.  Thurber,  13  111.  554  ;  Paul  v.  Virginia,  8  Wall.  168  ;  Tatem 
v.  Wright,  23  N.  J.  429;  Slaughter  v.  Comm.  13  Gratt.  767  ;  Firemen's 
Association  v.  Lounsbury,  21  111.  511 ;  States.  Lathrop,  10  La.  Ann.  398  ; 
Fire  Department  v.  Noble,  3  E.  D.  Smith,  440;  Fire  Department  v. 
Wright,  3  E.  D.  Smith,  453. 

A  statute  providing  that  foreign  corporations  doing  business  in  the  State, 


292  CONSTITUTION    OF    THE    UNITED    STATES. 

may  be  sued  by  service  of  process  on  an  agent  in  the  State,  is  valid.  If 
such  corporations  exercise  franchises  in  the  State,  they  will  be  deemed  to 
have  assented  to  the  mode  provided  for  instituting  suits.  Warren  Manuf. 
Co.  z/.  ./Etna  Ins.  Co.  2  Paine,  501. 

A  statute  requiring  foreign  corporations  doing  business  in  the  State,  to 
obtain  a  certificate  from  the  State  comptroller,  is  valid.  People  z>.  Imlay, 
20  Barb.  68. 

Citizens  of  other  States  are  entitled  to  all  immunity  from  taxation  as 
respects  their  property  in  the  State,  which  is  enjoyed  by  citizens  of  the 
State.  An  act  imposing  higher  taxes  upon  non-residents  than  upon  citi- 
zens, is  void.  Wiley  v.  Parmer,  14  Ala.  627;  Oliver  v.  'Washington  Mills, 
93  Mass.  268 ;  Smith  v.  Moody,  26  Ind.  299. 

The  property  of  a  non-resident  within  the  State,  may  be  taxed  equally 
with  that  of  a  resident.  Duer  v.  Small,  4  Blatch.  263  ;  Battle  z>.  Corpora- 
tion, 9  Ala.  234. 

A  State  law  imposing  a  discriminating  tax  on  non-resident  traders,  is 
void.  Ward  v.  Maryland,  12  Wall.  418  ;  S.  C  31  Md.  279. 

A  tax  upon  those  who  sell  goods  brought  into  the  State  from  any  other 
State,  and  not  owned  by  persons  domiciled  in  the  State,  is  valid.  People 
v.  Coleraan,  4  Cal.  46. 

A  tax  upon  non-resident  traders  or  transient  merchants,  is  valid  where 
the  taxation  is  the  same  as  that  imposed  upon  resident  traders.  Mount 
Pleasant  v.  Clutch,  6  Iowa,  546. 

A  State  law  requiring  non-residents  to  take  out  a  license  to  vend  for- 
eign merchandise,  is  valid.  Sears  v.  Commissioners,  36  Ind.  267. 

A  State  tax  upon  the  sale  of  articles  manufactured  in  the  State,  is  valid* 
Downham  v.  Alexandria,  10  Wall.  173. 

A  State  law  which  requires  a  license  from  all  peddlers,  except  those 
who  sell  articles  manufactured  by  themselves  within  the  limits  of  the  State, 
is  valid.  Seymours.  State,  51  Ala.  52. 

A  statute  requiring  a  residence  within  the  State  for  a  certain  number  of 
years,  in  order  to  obtain  a  license  to  sell  spirituous  liquors,  is  valid.  Austin 
v.  State,  10  Mo.  591. 

A  mere  difference  in  the  modes  of  ascertaining  the  value  of  the  property 
of  residents  and  non-residents  for  taxation,  where  both  modes  are  fair,  does 
not  amount  to  a  discrimination  between  them  so  as  to  render  the  act  in- 
valid. Redd  v.  St.  Francis  Co.  17  Ark.  416. 

The  Constitution  does  not  prohibit  a  discrimination  between  local 
freight  and  that  which  is  extra-territorial  when  it  commences  its  transit. 


CITIZENS    OF    STATES.  293 

'Such  a  discrimination  denies  to  no  citizen  of  another  State,  any  privilege  or 
immunity  which  it  does  not  deny  to  the  citizens  of  the  State.  Shipper  v. 
Penn.  R.  R.  Co.  47  Penn.  338. 

The  object  of  the  Constitution  was  to  secure  to  the  citizens  of  every 
State  an  equal  administration  of  justice,  as  it  regarded  their  essential  rights 
either  of  property  or  person,  by  the  courts  of  every  State,  and  was  not  at 
all  intended  to  interfere  with  the  mode  of  prosecuting  those  rights.  The 
States  are  still  left  at  liberty  to  prescribe  the  mode  of  commencing  and 
conducting  suits  in  their  own  courts,  and  if  they  provide  extraordinary  rem- 
edies for  their  own  citizens,  in  extraordinary  cases,  it  will  not  from  thence 
follow  that  citizens  of  other  States  can  claim  them  likewise.  Hence  the 
privilege  of  suing  out  an  attachment  may  be  limited  to  the  citizens  of  the 
State.  Kincaid  v.  Francis,  Cooke,  49;  Campbell  v.  Morris,  3  H.  &  McH. 
535- 

The  right  to  institute  actions  of  any  kind,  in  another  State,  is  one  of  the 
privileges  and  immunities  to  which  the  citizens  of  each  State  are  entitled. 
Morgan  v.  Neville,  74  Penn.  52;  Davis  v.  Peirse,  7  Minn.  13;  McFar- 
land  v.  Butler,  8  Minn.  116;  Jackson  v.  Butler,  8  Minn.  117. 

A  law  providing  for  the  attachment  of  the  property  of  non-residents  for 
•debt,  is  valid.  Campbell  v.  Morris,  3  H.  &  McH.  535. 

A  citizen  of  one  State  has  the  right  to  sue  out  an  attachment  in  another 
State,  although  the  defendant  and  garnishee  are  residents  of  his  own  State. 
Morgan  v.  Neville,  74  Penn.  52. 

A  statute  prohibiting  all  persons  aiding  the  rebellion  against  the  United 
States,  from  prosecuting  or  defending  actions  during  the  continuance  of  the 
rebellion,  is  void.  Davis  v.  Peirse,  7  Minn.  13;  McFarland  v.  Butler,  8 
Minn.  116;  Jackson  v.  Butler,  8  Minn.  117. 

If  a  State  legislature  provides  that  a  citizen,  when  commencing  a  suit, 
need  not  give  security  for  costs,  but  that  a  plaintiff  who  is  a  citizen  of  an- 
other State,  shall,  the  provision  is  not  inconsistent  with  the  Constitution. 
Kincaid  v.  Francis,  Cooke,  49;  Haney  z>.  Marshall,  9  Ind.  194;  Baker  v. 
Wise,  1 6  Gratt.  139. 

A  citizen  of  one  State  can  not,  by  virtue  of  this  clause,  claim  the  right 
to  sue  in  another  State,  and  there  impeach  an  assignment  made  in  his  own 
State,  which  is  valid  by  its  laws  but  void  by  the  laws  of-the  State  where  he 
sues.  Burlock  v.  Taylor,  33  Mass.  335. 

A  citizen  of  one  State  may  sue  a  foreigner  in  the  courts  of  another 
State,  whether  he  comes  there  to  embark  for  a  foreign  country,  or  to  reside 
there  for  purposes  of  business.  Barrell  v.  Benjamin,  15  Mass.  354. 

A  corporation  itself,  and  its  faculties  or  privileges  as  such,  and  the 


294  CONSTITUTION    OF    THE    UNITED    STATES. 

right  of  individuals  to  be  or  compose  a  corporation,  and  to  act  in  a  corpo- 
rate capacity,  are  all  peculiar  privileges,  creations  of  tne  local  law,  and  can 
not,  by  the  mere  force  of  that  law,  exist  or  be  exercised  beyond  its  territo- 
rial jurisdiction.  It  therefore  can  operate  in  the  territory  of  another  sov- 
ereign only  by  his  permission,  express  or  implied.  Comm.  v.  Milton,  12 
B.  Mon.  212  ;  Slaughter  v.  Comm.  13  Gratt.  767. 

A  citizen  of  one  State  becoming  entitled  to  property  in  another  State,., 
acquires  and  must  hold  it  according  to  the  laws  of  that  State ;  and  if  the 
laws  of  the  State  prohibit  its  exportation,  he  can  not  export  it.  Allen  v. 
Sarah,  2  Harring.  434. 

Under  this  provision  the  citizens  of  the  several  States  are  not  permitted 
to  participate  in  all  the  rights  which  belong  exclusively  to  the  citizens  of 
any  other  particular  State,  merely  on  the  ground  that  they  are  enjoyed  by 
those  citizens.  Nor  is  the  legislature  in  regulating  the  use  of  the  common 
property  of  the  citizens  of  the  State  bound  to  extend  to  the  citizens  of  all 
the  other  States  the  same  advantages  as  are  secured  to  its  own  citizens. 
A  several  fishery,  either  as  the  right  to  it  respects  running  fish  or  such  as 
are  stationary,  such  as  oysters,  clams,  or  the  like,  is  as  much  the  property 
of  the  individual  to  whom  it  belongs  as  dry  land  or  land  covered  with 
water.  Where  those  private  rights  do  not  exist  to  the  exclusion  of  the 
common  right,  that  of  fishing  belongs  to  all  the  citizens  or  subjects  of  the 
State.  It  is  the  property  of  all.  They  may  be  considered  as  tenants  in 
common  of  this  property,  and  they  are  so  exclusively  entitled  to  the  use  of 
it  that  it  can  not  be  enjoyed  by  others  without  the  tacit  consent  or  express 
permission  of  the  sovereign  who  has  the  power  to  regulate  its  use.  The 
grant  of  privileges  and  immunities  to  the  citizens  of  other  States,  does  not 
amount  to  a  grant  of  a  cotenancy  in  the  common  property  of  the  State. 
Corfield  v.  Coryell,  4  Wash.  C.  C.  371 ;  Bennett  v.  Boggs,  Bald.  60;  Mc- 
Cready  v.  State,  94  U.  S.  391 ;  S.  C.  27  Gratt.  985 ;  Dunham  v.  Lam- 
phere,  69  Mass.  268;  State  v.  Medbury,  3  R.  I.  138. 

A  statute  passed  for  the  purpose  of  preventing  the  escape  of  slaves  may 
require  an  inspection  of  the  vessels  of  non-residents,  although  the  vessels 
of  residents  are  not  inspected.  Baker  v.  Wise,  16  Gratt.  139. 

A  statute  which  makes  a  discrimination  between  the  employment  of 
vessels,  but  not  between  the  persons  owning  or  navigating  them,  does  not 
discriminate  in  favor  of  citizens  of  the  State,  and  is  valid.  The  Ann  Ryan, 
7  Ben.  20. 

A  State  law  requiring  an  executor  or  administrator  to  pay  the  debts  due 
to  citizens  of  the  State  before  paying  debts  due  to  citizens  of  other  States,, 
is  valid.  Douglass  v.  Stephens,  I  Del.  Ch.  465. 

Congress  can  not  give  privileges  to  citizens  of  one  State  over  those  of 
another  by  any  measure  which  it  can  constitutionally  adopt.  Chapman  v. 
Miller,  2  Spears,  769. 


FUGITIVES    FROM    JUSTICE.  .         295 

A  provision  in  a  statute  of  limitations  that  it  shall  not  run  when  the 
defendant  is  out  of  the  State,  as  against  a  resident,  but  shall .  as  against  a 
non-resident,  is  valid.  Chemung  Canal  Bank  v.  Lowery,  93  U.  S  72. 

Pilot  laws  discriminating  between  vessels  owned  by  citizens  of  the  State 
and  those  owned  by  citizens  of  another  State,  are  unconstitutional.  Chap- 
man v.  Miller,  2  Spears,  769. 

Congress  can  not  give  to  a  State  the  power  to  do  a  thing  which  it  can 
not  do  itself.  Chapman  v.  Miller,  2  Spears,  769. 

A  State  law  requiring  a  diploma  from  a  regularly  chartered  medical 
school  in  order  to  practice  medicine  or  surgery,  except  from  those  who 
have  practiced  within  the  State  for  ten  years  next  preceding  the  passage  of 
the  law,  is  valid,  and  does  not  discriminate  between  citizens  of  different 
States.  Ex  parte  Spinney,  10  Nev.  323. 

The  widows  of  the  citizens  of  other  States  are  not  by  this  clause  enti- 
tled to  the  same  rights  as  the  widows  of  persons  resident  in  the  State. 
Conner  v.  Elliott,  18  How.  591. 

•• 

2.  A  person  charged  in  any  State  with  treason,  fel- 
ony, or  other  crime,  who  shall  flee  from  justice,  and  be 
found  in  another  State,  shall,  on  demand  of  the  execu- 
tiye  authority  of  the  State  from  which  he  fled,  be  de- 
livered up,  to  be  removed  to  the  State  having  jurisdic- 
tion of  the  crime. 

This  clause  by  its  terms  applies  only  to  criminals  fleeing  from  one  State 
to  another  State,  and  does  not,  in  express  terms,  apply  to  those  fleeing 
from  a  territory  to  a  State.  Ex  parte  James  Romaine,  23  Cal.  585. 

This  clause  does  not  contain  a  grant  of  power.  It  confers  no  right.  It 
is  the  regulation  of  a  previously  existing  right.  It  makes  obligatory  upon 
every  member  of  the  Union  the  performance  of  an  act  which  previously  was 
of  doubtful  obligation.  The  whole  effect  of  the  Constitution  is  to  confer 
on  each  member  a  right  to  demand  from  every  other  member  a  fugitive, 
and  to  make  obligatory  the  surrender  which  was  before  discretionary.  In 
re  William  Fetter,  23  N.  J.  311. 

The  right  of  one  State  to  claim  the  surrender  of  fugitives  from  justice 
who  have  escaped  into  another  State,  can  be  carried  into  effect  only  through 
the  medium  of  laws  and  the  intervention  of  magistrates.  Comm.  v.  Tracy, 
46  Mass.  536. 

The  purpose  of  this  provision  was  two-fold :  first,  to  impose  an  abso- 
lute obligation  on  each  State  to  surrender  criminals  fleeing  from  the  justice 


296  CONSTITUTION    OF    THE    UNITED    STATES. 

m 

of  another  State ;  and  second,  to  define  clearly  the  class  of  criminals  to  be 
surrendered.     Ex  parte  Peter  Voorhees,  32  N.  J.  141. 

The  words  "treason,  felony  or  other  crime,"  in  their  plain  and  obvious 
import,  as  well  as  in  their  legal  and  technical  sense,  embrace  every  act 
forbidden  and  made  punishable  by  a  law  of  the  State.  The  word  "  crime  " 
of  itself  includes  every  offense  from  the  highest  to  the  lowest  in  the  grade 
of  offenses,  and  includes  what  are  called  misdemeanors  as  well  as  treason 
and  felony.  Comm.  v.  Dennison,  24  How.  66;  Morton  v.  Skinner,  48  Ind. 
1 23;. People  v.  Brady,  56  N.  Y.  182  ;  Ex  parte  John  L.  Clark,  9  Wend.  212  ; 

Ex  parte  Benjamin  T.  Greenough,  31  Vt.  279. 

i 

The  word  "crime  "  is  a  nomen  generalissamum,  and  has  always  been 
considered  as  embracing  every  species  of  indictable  offense.  Ex  parte 
Peter  Voorhees,  32  N.  J.  141. 

All  persons  who  are  guilty  of  minor  offenses,  such  as  assaults,  libels 
and  the  entire  train  of  similar  misdemeanors  are  embraced  in  the  words  of 
the  Constitution.  Ex  parte  Peter  Voorhees,  32  N.  J.  141. 

The  word  "  crime  "  embraces  an  act  which  was  not  criminal  at  the 
time  of  the  adoption  of  the  Constitution,  but  was  made  so  by  a  subsequent 
statute.  Ex  parte  Wm.  H.  Hughes,  Phillips,  57  ;  Ex  parte  Peter  Voorhees, 
32  N.  J.  141  ;  People  v.  Brady,  56  N.  Y.  182. 

This  clause  includes  every  offense  made  punishable  by  the  law  of  the 
State  in  which  it  was  committed,  and  gives  the  right  to  the  executive  au- 
thority of  the  State  to  demand  the  fugitive  from  the  executive  authority  of 
the  State  in  which  he  is  found.  The  right  given  to  demand,  implies  that  it 
is  an  absolute  right,  and  it  follows  that  there  must  be  a  correlative  obliga- 
tion to  deliver,  without  any  reference  to  the  character  of  the  crime  charged 
or  to  the  policy  or  laws  of  the  State  to  which  the  fugitive  had  fled.  Comm. 
v.  Dennison,  24  How.  66  ;  Ex  parte  Peter  Voorhees,  32  N.  J.  141. 

A  person  who  commits  a  crime  within  a  State,  and  withdraws  himself 
from  such  jurisdiction  without  waiting  to  abide  the  consequences  of  such 
act,  must  be  regarded  as  a  fugitive  from  the  justice  of  the  State  whose  laws 
he  has  infringed.  Ex  parte  Peter  Voorhees,  32  N.  J.  141. 

It  is  the  right  of  the  sovereignty  whose  laws  have  been  violated  to  de- 
cide what  offenders  it  will  pursue,  and  the  State  upon  which  the  demand 
is  made  can  not  rightfully  call  in  question  that  decision.  Ex  parte  Peter 
Voorhees,  32  N.  J.  141. 

It  is  not  necessary  to  show  that  the  pSrson  is  guilty.  It  is  not  neces- 
sary, as  under  the  comity  of  nations,  to  examine  into  the  facts  alleged 
against  him  constituting  the  crime.  It  is  sufficient  that  he  is  charged  with 
having  committed  a  crime.  Ex  parte  John  L.  Clark,  9  Wend.  212;  People 
-V.  Brady,  56  N.  Y.  182. 


FUGITIVES    FROM    JUSTICE.  297 

The  executive  authority  of  the  State  is  not  authorized  by  this  article  to 
make  the  demand  unless  the  party  is  charged  in  the  regular  course  of  judi- 
cial proceedings.  It  is  equally  necessary  that  the  executive  authority  of 
the  State  upon  which  the  demand  is  made,  when  called  on  to  render  his 
aid,  should  be  satisfied  by  competent  proof  that  the  party  is  so  charged. 
Comm.  v.  Dennison,  24  How.  66. 

The  duty  to  surrender  is  not  one  resting  in  discretion.  If  the  demand 
is  made  in  due  form,  and  the  requisite  documents  exhibited  showing  that 
the  fugitive  is  charged  with  crime,  the  duty  to  surrender  becomes  merely 
ministerial.  Under  such  circumstances,  to  refuse  to  authorize  the  extradi- 
tion, is  a  clear  infraction  of  the  rule  prescribed  by  the  Constitution.  The 
Constitution  has  made  the  surrender  of  a  fugitive  from  justice,  which,  by 
the  law  of  nations  depended  on  the  concessions  of  comity,  a  rule  of  law  of 
perfect  obligation  and  entirely  imperative  in  its  character.  Ex  parte  Peter 
Voorhees,  32  N.  J.  141. 

The  executive  of  the  State  upon  whom  the  demand  is  made  for  the 
surrender  of  the  fugitive,  is  not  authorized  to  look  behind  the  indictment 
or  affidavit  in  which  the  crime  against  the  State  is  charged,  and  inquire 
whether,  by  the  laws  of  his  own  State,  the  facts  alleged  would  constitute 
a  crime  in  his  own  State.  To  refuse  to  deliver  up  a  fugitive  from  justice, 
on  the  legally  authorized  demand  of  the  executive  officer  of  the  State  from 
which  he  fled,  on  the  pretext  that  by  the  laws  of  the  State  in  which  the 
fugitive  is  found,  he  is  not  guilty  of  any  criminal  offense,  would  be  an  open, 
palpable  violation  of  the  Constitution.  Johnston  v.  Riley,  13  Geo.  97. 

The  Constitution  does  not  assume  to  deal  with  the  question  before  the 
proper  executive  demand  has  been  made,  nor  undertake,  in  the  absence  of 
a  demand,  to  define  the  duties  nor  limit  the  authority  of  the  State  within 
which  the  fugitive  may  be  found.  A  State  law  providing  for  the  arrest  and 
detention  of  a  fugitive  until  a  demand  can  be  made,  is  valid.  Ex  parte 
John  White,  49  Cal.  433  ;  Comm.  v.  Tracy,  46  Mass.  536 ;  Ex  parte 
Cubreth,  49  Cal.  435. 

A  State  law  requiring  the  officer  making  the  arrest  to  take  the  party 
before  the  nearest  judge  for  identification,  is  valid.  Robinson  z/.  Flanders, 
29  Ind.  10. 

A  State  law  which  makes  it  the  duty  of  the  executive  to  issue  the  war- 
rant upon  a  proper  requisition,  is  constitutional.  Ex  parte  Joseph  Smith, 
3  McLean,  121. 

A  State  law  which  is  intended1  to  aid  in  the  enforcement  of  the  act  of 
Congress  relating  to  the  surrender  of  fugitives  from  justice,  is  valid. 
Comm.  v.  Hall,  75  Mass.  262. 

Congress  has  the  power  to  vest  in  any  national  officer  the  authority  to 
cause  the  arrest  in  any  State  of  a  fugitive  from  the  justice  of  another  State, 


2QO  CONSTITUTION    OF    THE    UNITED    STATES. 

and  to  surrender  such  fugitive  on  the  requisition  of  the  executive  of  the 
latter  State.     Ex  parte  Peter  Voorhees,  32  N.  J.  141. 

Every  sovereign  nation  has  the  right  to  surrender  fugitives  within  its 
territory.  No  State  is  bound  to  harbor  criminals  within  its  borders, 
but  may,  at  its  option,  surrender  them  to  the  government  against 
whose  laws  they  have  offended.  Hence  a  fugitive  from  justice  from  either 
of  the  United  States,  may,  under  the  provisions  of  the  Constitution,  be 
arrested  and  detained  preparatory  to  his  surrender  before  a  requisition  is 
actually  made  by  the  executive  of  the  State  where  the  crime  is  committed. 
It  is  an  exercise  of  power  essential  to  the  full  operation  of  the  Constitution. 
In  re  Wm.  Fetter,  23  N.  J.  311  ;  People  v.  Schenck,  2  Johns.  479;  In  re 
Thomas  F.  Goodhue,  I  Wheel.  Crim.  Cas.  427  ;  vide  People  v.  Wright,  2 
Caines,  213;  Ex  parte  Edwin  Heyward,  i  Sandf.  701. 

3.  No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall,  in 
consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  deliv- 
ered up  on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due. 

Congress  has  the  power  to  pass  laws  to  carry  this  provision  into  effect. 
Prigg  v.  Comm.  16  Pet.  539;  Henry  v.  Lowell,  16  Barb.  268;  Millers.  Mc~ 
Querry,  5  McLean,  469 ;  Norris  v.  Newton,  5  McLean,  92 ;  Ex  parte  Mar- 
tin, 2  Paine,  348;  Ableman  v.  Booth,  21  How.  506;  S.  C.  3  Wis.  I  ;  Jones 
V.  Van  Zandt,  5  How.  215  ;  S.  C.  2  McLean,  596 ;  Butler  v.  Hopper,  i  Wash. 
C.  C.  499;  Ex  parte  Simmons,  4  Wash.  C.  C.  396;  Ex  parte  Simeon  Bush- 
nell,  9  Ohio  St.  76;  Sims'  Case,  61  Mass.  285;  Comm.  v.  Ave^^5  Mass. 
193;  Comm.  v.  Fitzgerald,  7  Law  Rep.  379 ;  Comm.  z/.  CypB^  19  Mass. 
ii ;  Wright  v.  Deacon,  5  S.  &  R.  62  ;  Hill  v.  Low,^j^sh.  C.  C.  327  ; 
Johnson  v.  Tompkins,  Bald.  571 ;  Kauffman  v.  OliverJiro  Penn.  514;  Jack 
v.  Martin,  12  Wend.  311 ;  S.  C.  14  Wend.  509;  Floyd  ^/Recorder,  u  Wend. 
1 80;  Glenn  v.  Hodges,  9  Johns.  67;  Graves  v.  State,  i  Ind.  368;  Thorn- 
ton's Case,  1 1  111.  32 ;  Eells  v.  People,  5  111.  498 ;  Fanney  v.  Montgomery, 
Breese,  188;  Ex  parte  Perkins,  2  Cal.  424;  Donnell  v.  State,  3  Ind.  480; 
State  v.  Hoppess,  2  West.  L.  J.  289  ;  Ex  parte  Richards,  3  West.  L.  J.  563 ; 
Gittner  v.  Gorham,  4  McLean,  402;  Opinion  of  Justices,  41  N.  H.  553;  Ex 
parte  Long,  9  N.  Y.  Leg.  Obs.  73 ;  U.  S.  v.  Williamson,  4  A.  L.  Reg.  5 ; 
Ray  v.  Donnell,  4  McLean,  504. 

SECTION   fll. 

i.  New  States  may  be  admitted  by  the  Congress 
into  this  Union ;  but  no  new  State  shall  be  formed  or 
erected  within  the  jurisdiction  of  any  other  State  ;  nor 
any  State  be  formed  by  the  junction  of  two  or  more 


NEW    STATES.  299 

-> 

States,  or  parts  of  States,  without  the  consent  of  the 
legislatures  of  the  States  concerned,  as  well  as  of»  the 
Congress. 

The  power  to  expand  the  territory  of  the  United  States  by  the  admis- 
sion of  new  States  is  plainly  given  ;  and  in  the  construction  of  this  power 
by  all  the  departments  of  the  Government,  it  has  been  held  to  authorize  the 
acquisition  of  territory  not  fit  for  admission  at  the  time,  but  to  be  admitted 
as  soon  as  its  population  and  situation  would  entitle  it  to  admission.  It  is 
acquired  to  become  a  State,  and  not  to  be  held  as  a  colony  and  governed 
by  Congress  with  absolute  authority.  And  as  the  propriety  of  admitting  a 
new  State  is  committed  to  the  sound  discretion  of  Congress,  the  power  to 
acquire  territory  for  that  purpose  to  beheld  by  the  United  States  until  it 
is  in  a  suitable  condition  to  become  a  Sta4;e  upon  an  equal  footing  with 
the  other  States,  must  rest  upon  the  sajne  discretion.  Jit  is  a  question  for 
the  political  department  of  the  Government,  and  not  the  judicial ;  and  what- 
ever the  political  department  of  the  Government  shall  recognize  as  within 
the  limits  of  the  United  States,  the  judicial  department  is  also  bound  to 
recognize  and  to  administer  in  it  the  laws  of  the  United  States  so  far  as 
they  apply.  Dred  Scott  v.  Sandford,  19  How.  393. 

The  new  States  stand  on  an  equal  footing  with  the  other  States,  and 
have  the  same  powers  and  privileges.  Pollard  v.  Hagan,  3  How.  212; 
Withers  v.  Buckley,  20  How.  84;  s.  C.  29  Miss.  21 ;  Woodman  v.  Kilbourn. 
Manuf.  Co.  i  Abb.  C.  C.  158. 

If  an  express  stipulation  were  inserted  in  an  act  admitting  a  State  into 
the  Union  granting  the  municipal  right  of  sovereignty  and  eminent  domain 
to  the  United  States,  such  stipulation  would  be  void  and  inoperative,  be- 
cause the  United  States  have  no  constitutional  capacity  to  exercise  mu- 
nicipal jurisdiction,  sovereignty,  or  eminent  domain  within  the  limits  of  a 
State  or  elsewhere,  except  in  the  cases  in  which  it  is  expressly  granted. 
Pollard  v.  Hagan,  3  How.  212  ;  Strader  v.  Graham,  10  How.  82  ;  Depew  ^, 
Trustees,  5  Ind.  8. 

When  a  condition  annexed  to  a  State  Constitution  is  rescinded  with  the 
assent  of  the  State  Government  and  the  Federal  Government,  given  through 
the  constituted  authorities  of  each,  the  powers  disclaimed  may  be  resumed 
and  immediately  exercised  by  the  State  authorities.  Duke  v.  Navigation 
Co.  10  Ala.  82. 

If  Congress,  upon  the  presentation  of  a  Constitution  by  a  territory, 
consents  to  admit  it  as  a  State  upon  condition  that  certain  alterations  are 
made  therein,  and  these  alterations  are  accepted  by  the  territorial  legisla- 
ture, such  alterations  become  a  part  of  the  State  Constitution.  Brittle  v. 
People,  2  Neb.  198. 

2.  The  Congress  shall  have  power  to  dispose  of, 
and  make  all  needful  rules  and  regulations  respecting 


3OO  CONSTITUTION    OF    THE    UNITED    STATES. 

the  territory  or  other  property  belonging  to  the  United 
States ;  and  nothing  in  this  Constitution  shall  be  so  con- 
strued as  to  prejudice  any  claims  of  the  United  States, 
or  of  any  particular  State. 

The  term  "territory,"  as  here  used,  is  merely  descriptive  of  one  kind 
of  property,  and  is  equivalent  to  the  word  lands.     Congress  has  the  same  f 
power  over  it  as  over  any  other  property  belonging  to  the  United  States.   ^ 
This  power  is  vested  in  Congress  without  limitation.     U.  S.  v.  Gratiot,  14 
Pet.  526. 

The  words  "other  property,"  by  every  known  rule  of  interpretation, 
xnust  mean  property  of  a  different  description  from  territory  or  land. 
Dred  Scott  v.  Sandford,  19  How.  393. 

The  Constitution  confers  on  the  Government  the  powers  of  making 
war  and  of  making  treaties  ;  consequently  it  possesses  the  power  of  ac-  '     « 
quiring  territory  either  by  conquest  or  by  treaty.     Am.  Ins.  Co.  v.  Canter, 
i  Pet.  511. 

This  clause  authorizes  the  passage  of  all  laws  necessary  to  secure  the 
rights  of  the  United  States  to  the  public  lands,  and  to  provide  for  their 
sale  and  to  protect  them  from  taxation.  Pollard  v.  Hagan,  3  How.  212. 

This  clause  does  not  confer  on  Congress  any  power  to  grant  the  shores 
of  navigable  waters,  or  the  soil  under  them  within  a  State.  Pollard  v. 
Hagan,  3  How.  212. 

There  can  be  neither  a  reservation  nor  appropriation  of  the  public 
•domain  for  any  purpose  whatever,  without  the  express  authority  of  law. 
Neither  the  President  nor  the  executive  officers  in  the  several  departments 
of  the  Government  possess  an  absolute  and  inherent  power  to  do  any  act 
not  authorized  by  the  Constitution  or  the  acts  of  Congress.  To  the  Con- 
stitution and  laws  alone  they  must  look  for  the  source  of  their  power  and 
authority,  because  they  can  derive  them  from  no  other.  McConnell  v. 
Wilcox,  2  111.  344. 

Nothing  but  an  act  of  Congress  can  authorize  the  exercise  of  the  power 
to  grant  public  property.  Seabury  v.  Field,  I  Me  A.  I ;  U.  S.  v.  Fitz- 
gerald, 15  Pet.  407. 

Congress  can  make  all  needful  rules  and  regulations  for  the  disposition 
and  protection  of  public  lands  within  the  limits  of  a  State,  but  beyond  this 
it  can  exercise  no  other  acts  of  sovereignty  which  it  may  not  exercise  in 
common  over  the  lands  of  individuals.  U.  S.  v.  Railroad  Bridge  Co.  6 
McLean,  517. 

Until  the  Government  has  substantially  parted  with  the  land,  and 
thereby  divested  itself  of  the  jurisdiction  over  it  conferred  by  the  Consti- 


TERRITORIES.  30 1 

tution,  it  may  provide  for  the  protection  and  disposition  thereof  in  such 
manner  as  may  be  necessary  and  adapted  to  those  purposes.  Congress 
may,  therefore,  provide  that  all  contracts  and  transfers  relating  t'o  such 
land,  made  before  a  patent  issues,  shall  be  void.  Rose  v.  Buckland,  17 
111.  309;  Dyke  v.  McVey,  16  111.  41. 

Congress  has  the  absolute  right  to  prescribe  the  times,  the  conditions, 
and  the  mode  of  transferring  the  public  domain  or  any  part  of  it,  and  to 
designate  the  persons  to  whom  the  transfer  shall  be  made.  No  State  legis- 
lation can  interfere  with  this  right  or  embarrass  its  exercise.  Gibson  v. 
Choteau,  13  Wall.  92;  Irvine  v.  Marshall,  20  How.  558. 

Congress  has  the  sole  power  to  declare  the  dignity  and  effect  of  titles 
emanating  from  the  United  States.  Bagnell  v.  Broderick,  13  Pet.  436. 

The  power  to  dispose  of  the  territory  vests  in  Congress  the  power  not 
only  to  sell,  but  also  to  lease  the  lands.  The  disposal  must  be  left  to  the 
discretion  of  Congress.  U.  S.  v.  Gratiot,  14  Pet.  526.  . 

A  military  officer  at  the  head  of  a  provisional  government  has  no  power, 
without  an  act  of  Congress,  to  authorize  a  grant  of  the  public  lands.  Sea- 
bury  v.  Field,  i  McA.  i. 

Congress  may  prohibit  and  punish  trespassers  on  public  lands  within 
the  limits  of  a  State.  Jourdan  v.  Barrett,  4  How.  169. 

Congress  has  authority  to  dispose  of  the  public  lands  as  homesteads, 
and  to  secure  the  title  to  such  grantees  and  bona  fide  purchasers  free  from 
liability  for  debts  contracted  prior  to  the  issuing  of  the  patent  therefor, 
whether  such  lands  are  within  the  boundaries  of  a  State  or  not.  Russell 
v.  Lowth,  21  Minn.  167;  Gile  v.  Hallock,  33  Wis.  523;  Millers/.  Little, 47 
Cal.  348. 

A  title  to  land  may  be  conveyed  by  treaty,  and  no  patent  is  necessary. 
U.  S.  v.  Brooks,  10  How.  442  ;  Eu-che-lah  v.  Welsh,  3  Hawks,  155. 

The  President  and  Senate,  in  concluding  a  treaty,  may  lawfully  cove- 
nant that  a  patent  shall  issue  to  convey  lands  which  belong  to  the  United 
States,  without  the  consent  of  Congress.  Holden  v.  Joy,  17  Wall.  211. 

No  State  can  pass  any  law  depriving  a  patentee  of  the  possession  and 
enjoyment  of  the  property  by  reason  of  any  delay  in  the  transfer  of  the 
title  after  the  initiation  of  proceedings  for  its  acquisition.  Gibson  v. 
Choteau,  13  Wall.  92. 

A  State  may  tax  persons  occupying  the  public  lands  of  the  United 
States.  The  power  of  taxation  for  police  or  municipal  purposes,  whether 
for  the  benefit  of  local  districts,  or  for  the  support  of  the  State  organiza- 
tion, is  co-extensive  with  the  persons  of  all  who  enjoy  the  protection  of  the 
State  government,  whether  citizens  or  foreigners,  whether  occupying  lands 
owned  by  themselves,  or  a  part  of  the  national  domain.  People  v.  Naglie, 
i  Cal.  231. 


3O2  CONSTITUTION    OF    THE    UNITED    STATES. 

No  State  law,  whether  of  limitations  or  otherwise,  can  defeat  the  title 
of  the  United  States  to  public  land  within  the  limits  of  a  State.  Jourdan 
^/.  Barrett,  4  How.  169. 

A  State  statute  requiring  all  persons  engaged  in  mining  on  the  public 
lands  to  take  out  a  license,  is  not  a  regulation  of  the  public  lands.  People 
•v.  Naglie,  I  Cal.  231. 

In  the  admission  of  new  States  into  the  Union,  compacts  are  entered 
into  with  the  Federal  Government,  that  they  will  not  tax  the  lands  of  the 
United  States.  This  implies  that  the  States  have  the  power  to  tax  such 
lands,  if  unrestrained  by  compact.  U.  S.  v.  Railroad  Bridge  Co.  6  McLean, 
517. 

If,  at  the  time  of  the  purchase,  the  jurisdiction  over  the  land  is  not 
ceded,  the  State  may  tax  them.  In  many  instances  the  States  have  taxed 
the  lands  on  which  custom  houses  and  other  public  buildings  have  been 
constructed,  and  such  taxes  have  been  paid  by  the  Federal  Government. 
U.  S.  -z/.  Railroad  Bridge  Co.  6  McLean,  517. 

The  proprietorship  of  land  in  a  State,  can  not  enlarge  the  sovereignty 
of  the  Federal  Government,  or  restrict  the  sovereignty  of  the  State.  This 
sovereignty  extends  to  the  State  limits  over  the  territory  of  the  State,  sub- 
ject only  to  the  proprietary  right  of  the  lands  owned  by  the  Federal  Gov- 
ernment, and  the  right  to  dispose  of  such  lands  and  protect  them  under 
such  regulations  as  it  may  deem  proper.  U.  S.  -v.  Railroad  Bridge  Co.  6 
McLean,  517;  Camp  v.  Smith,  2  Minn.  155;  State  -z/. ^Batchelder,  5  Minn. 
223. 

A  State  may  tax  land  after  it  has  been  entered  and  paid  for,  although 
no  patent  has  been  entered  therefor.  Carroll  v.  Safford,  3  How.  441 ;  Levi 
v.  Thompson,  4  How.  17;  Carroll  v.  Perry,  4  McLean,  25;  Astrom  v. 
Hammond,  3  McLean,  107  ;  Witherspoon  v.  Duncan,  4  Wall.  210;  S.  C. 
21  Ark.  240. 

In  the  discharge  of  the  ordinary  functions  of  sovereignty,  a  State  has 
a  right  to  provide  for  intercourse  between  the  citizens,  commercial  or 
otherwise,  in  every  part  of  the  State,  by  the  establishment  of  easements, 
whether  they  may  be  common  roads,  turnpike,  plank  or  railroads.  The 
kind  of  easement  must  depend  on  the  discretion  of  the  legislature.  This 
power  extends  as  well  over  the  lands  owned  by  the  United  States,  as  to  lands 
owned  by  individuals.  The  right  of  eminent  domain  appertains  to  a  State 
sovereignty,  and  is  to  be  exercised  free  from  the  restraints  of  the  Constitu- 
tion. The  property  of  individuals  is  subject  to  this  right,  and  no  reason  is 
perceived  why  the  public  lands  should  not  also  be  subject  to  it.  U.  S.  z>. 
Railroad  Bridge  Co.  6  McLean,  517;  111.  Cent.  R.  R.  Co.  -u.  U.  S.  20  Law 
Rep.  630. 


TERRITORIES.  ,     303 

No  State  formed  out  of  the  territory  of  the  United  States  has  a  right 
to  the  public  lands  within  its  limits,  or  can  exe'rcise  any  power  whatever 
over  them.  Turner  v.  Missionary  Union,  5  McLean,  344;  U.  S.  i>.  Gratiot, 
14  Pet.  526. 

Where  lands  are  reserved  or  held  by  the  general  Government  for  spec- 
ified and  national  purposes,  a  State  can  not  construct  an  easement  which 
will  in  any  degree  affect  such  purposes  injuriously.  U.  S.  v.  Railroad 
Bridge  Co.  6  McLean,  517. 

When  the  acts  of  Congress  make  a  patent  necessary  to  complete  the 
title  to  public  land,  no  State  law  can  make  anything  else  evidence  that  the 
title  has  passed,  Wilcox  z>.  Jackson,  13  Pet.  498. 

In  legislating  for  the  territories,  Congress  exercises  the  combined  pow- 
of  the  general  and  of  a  State  government.  Am.  Ins.  Co.  v.  Canter,  i 
Pet.  511. 

The  right  to  govern  the  territory  of  the  United  States,  is  the  inevitable  •• 
consequence  of  the  right  to  acquire  territory.     Dred  Scott  z/.  Sandford, 
19  How.  393  ;    Am.  Ins.  Co.  v.  Canter,  I   Pet.   511  ;    U.  S.  z/.  Gratiot,  14 
Pet.  526. 

Congress  possesses  the  absolute  power  of  governing  and  legislating  tor 
the  territories,  and  may  give  a  territorial  court  jurisdiction  over  a  suit 
brought  by  or  against  a  citizen  of  a  territory.  Sere  v.  Pitot,  6  Cranch,  332. 

A  territorial  legislature  can  not  exercise  the  right  of  eminent  domain 
over  lands  belonging  to  the  United  States,  so  as  to  impair  the  title  of  the 
latter,  or  hamper  the  primary  disposal  of  the  soil,  by  a  claim  derived  from 
such  authority.  Pratt  v.  Brown,  3  Wis.  603. 

The  power  to  govern  the  territories  subject  to  the  Constitution  is  in 
Congress.  It  may  do  it  mediately  or  immediately,  either  by  the  creation 
of  a  territorial  government  with  power  to  legislate  for  the  territory,  subject 
to  such  restraints  and  limitations  as  Congress  may  impose  upon  it,  or  by 
the  passage  of  laws  directly  operating  upon  the  territory,  without  the  in- 
tervention of  a  subordinate  government.  Edwards  v.  Panama,  i  Oregon, 
418. 

A  territorial  government  is  the  only  mode  by  which  the  purchasers  and 
occupants  of  lands  beyond  the  limits  of  any  State,  can  be  protected  in  their 
rights  of  person  and  property.  Hence  the  implied  power  of  Congress  to 
establish  such  a  government.  U.  S.  v.  Railroad  Bridge  Co.  6  McLean, 
517;  U.  S.  v.  Gratiot,  14  Pet.  526;  State  v.  Navigation  Co.  u  Mart. 
309- 

The  power  to  acquire  necessarily  carries  with  it  the  power  to  preserve 
and  apply  to  the  purposes  for  which  it  was  acquired.  It  is  therefore  the 
duty  of  Congress  to  establish  a  government  over  the  people  in  a  territory. 


304  CONSTITUTION    OF    THE    UNITED    STATES. 

The  form  of  the  government  to  be  established  necessarily  rests  in  the  dis- 
cretion of  Congress.  Some  form  of  civil  authority  is  absolutely  necessary 
to  organize  and  preserve  civilized  society  and  prepare  it  to  become  a  State, 
and  what  is  the  best  form  must  always  depend  on  the  condition  of  the  ter- 
ritory at  the  time,  and  the  choice  of  the  mode  must  depend  upon  the  exer- 
cise of  a  discretionary  power  by  Congress,  acting  within  the  scope  of  its 
constitutional  authority.  Dred  Scott  v.  Sandford,  19  How.  393. 

The  power  of  Congress  over  the  person  or  property  of  a  citizen,  can 
never  be  a  mere  discretionary  power.  The  powers  of  the  Government  and 
the  rights  and  privileges  of  the  citizen,  are  regulated  and  plainly  denned  by 
the  Constitution  itself.  When  a  territory  becomes  a  part  of  the  United 
States,  the  Federal  Government  enters  into  possession  in  the  character  im- 
pressed upon  it  by  those  who  created  it.  It  enters  upon  it  with  its  powers 
over  the  citizen  strictly  defined  and  limited  by  the  Constitution,  from  which 
it  derives  its  own  existence,  and  by  virtue  of  which  alone  it  continues  to 
exist  and  act  as  a  government  and  sovereignty.  It  has  no  power  of  any 
kind  beyond  it,  and  it  can  not,  when  it  enters  a  territory  of  the  United 
States,  put  off  its  character  and  assume  discretionary  or  despotic  powers, 
which  the  Constitution  has  denied  to  it.  It  can  not  create  for  itself  a  new 
character  separated  from  the  citizens  of  the  United  States,  and  the  duties 
it  owes  them  under  the  provisions  of  the  Constitution.  The  territory  being 
a  part  of  the  United  States,  the  Government  and  the  citizen  both  enter  it 
under  the  authority  of  the  Constitution,  with  their  respective  rights  defined 
and  marked  out,  and  the  Government  can  exercise  no  power  over  his 
person  or  property  beyond  what  that  instrument  confers.  Dred  Scott  v. 
Sandford,  19  How.  393  ;  Ex  parte  Perkins,  2  Cal.  424. 

This  provision  applies  only  to  the  property  which  the  States  held  in 
common  at  the  time  of  the  adoption  of  the  Constitution,  and  has  no  refer- 
ence whatever  to  any  territory  or  other  property  which  the  Government 
may  have  acquired  since  that  time.  The  language  used  in  the  clause,  the 
arrangement  and  combination  of  the  powers,  and  the  somewhat  unusual 
phraseology  it  uses  when  it  speaks  of  the  political  power  to  be  exercised  in 
the  government  of  the  territory,  all  indicate  this  design  and  meaning.  It 
does  not  speak  of  any  territory  or  of  territories,  but  uses  language  which, 
according  to  its  legitimate  meaning,  points  to  a  particular  thing.  The 
power  is  given  only  in  relation  to  the  territory  of  the  United  States,  that  is,. 
to  a  territory  then  in  existence,  and  then  known  or  claimed  as  the  territoiy 
of  the  United  States.  It  begins  its  enumeration  of  powers  by  that  of  dis- 
posing, in  other  words  making  sale,  of  the  lands,  or  raising  money  from 
them.  It  then  gives  the  power  which  was  necessarily  associated  with  the 
disposition  and  sale  of  the  lands,  that  is,  the  power  of  making  needful  rules 
and  regulations  respecting  the  territory.  These  words  are  not  the  words 
usually  employed  by  statesmen  in  giving  supreme  power  of  legislation. 
Whether  the  particular  clause  is  taken  by  itself  or  in  connection  with  the 


TERRITORIES.  305 

other  provisions  of  the  Constitution,  it  can  not,  by  any  just  rule  of  in- 
terpretation, be  construed  to  apply  to  any  territory  which  the  Govern- 
ment has  since  obtained  from  foreign  nations.  Dred  Scott  v.  Sandford, 
19  How.  393. 

The  principle  has  been  established  that  discovery  gives  title  to  the  gov- 
ernment by  whose  subjects  or  by  whose  authority  it  is  made,  against  all 
other  European  governments,  which  title  may  be  consummated  by  posses- 
sion. The  exclusion  of  all  other  Europeans  necessarily  gives  to  the  nation 
making  the  discovery  the  sole  right  of  acquiring  the  soil  from  the  natives, 
and  establishing  settlements  upon  it.  It  is  a  right  with  which  no  Euro- 
peans can  interfere.  It  is  a  right  which  all  assert  for  themselves,  and  to 
the  assertion  of  which  by  others  all  assent.  In  the  establishment  of  these 
relations,  the  rights  of  the  original  inhabitants  were  in  no  instance  entirely 
disregarded,  but  were  necessarily,  to  a  considerable  extent,  impaired.  They 
were  admitted  to  be  the  rightful  occupants  of  the  soil,  with  a  legal  as  well 
as  just  claim  to  retain  possession  of  it,  and  to  use  it  according  to  their  own 
discretion,  but  their  rights  to  complete  sovereignty  as  independent  nations 
were  necessarily  diminished,  and  their  power  to  dispose  of  the  soil  at  their 
own  will,  to  whomsoever  they  pleased,  was  denied  by  the  original  funda- 
mental principle  that  discovery  gives  exclusive  title  to  those  who  make  it. 
While  the  different  nations  of  Europe  respected  the  rights  of  the  natives  as 
occupants,  they  asserted  the  ultimate  dominion  to  be  in  themselves,  and 
claimed  and  exercised,  as  a  consequence  of  this  ultimate  dominion,  a  power 
to  grant  the  soil  while  yet  in  possession  of  the  natives.  These  grants  have 
been  understood  by  all  to  convey  a  title  to  the  grantees  subject  only  to  the 
Indian  right  of  occupancy.  The  United  States  have  unequivocally  acceded 
to  the  great  and  broad  rule  by  which  its  civilized  inhabitants  now  hold  tliis 
country.  They  maintain  that  discovery  gave  an  exclusive  right  to  extin- 
guish the  Indian  title  of  occupancy,  either  by  purchase  or  by  conquest,  and 
gave  also  a  right  to  such  a  degree  of  sovereignty  as  the  circumstances  of 
the  people  would  allow  them  to  exercise.  The  existence  of  this  power 
must  negative  the  existence  of  any  right  which  may  conflict  with  and  con- 
trol it.  An  absolute  title  to  lands  can  not  exist  at  the  same  time  in  differ- 
ent persons,  or  in  different  governments.  An  absolute  title  must  be  an 
exclusive  title,  or  at  least  a  title  which  excludes  all  others  not  compatible 
with  it.  The  absolute  title  of  the  government,  subject  only  to  the  Indian 
right  of  occupancy,  is  incompatible  with  an  absolute  and  complete  title  in 
the  Indians.  It  has  never  been  contended  that  the  Indian  title  amounted 
to  nothing.  The  right  of  possession  has  never  been  questioned.  The 
claim  of  the  Government  extends  to  the  complete,  ultimate  title  charged 
with  this  right  of  possession,  and  to  the  exclusive  power  of  acquiring  that 
right.  Johnson  v.  Mclntosh,  8  Wheat.  543;  Fletcher  v.  Peck,  6  Cranch, 
87;  Mitchell  v.  United  States,  9  Pet.  712;  Clark  v.  Smith,  13  Pet.  195; 
Latimer  v,  Poteet,  14  Pet.  4;  Jackson  v.  Porter,  i  Paine,  457;  Blairs 
20 


3o6        CONSTITUTION  OF  THE  UNITED  STATES. 

Pathkiller,  2  Yerg.  407 ;  Vanhorne  v.  Dorrance,   2  Dall.  304 ;  Choteau  v. 
Molony,  16  How.  203  ;  Godfrey  v.  Beardsley,  2  McLean,  412. 

The  right  of  possession  has  never  been  questioned.  The  claim  of  the 
Government  extends  to  the  complete  ultimate  title  charged  with  this  right 
of  possession,  and  to  the  exclusive  power  of  acquiring  that  right.  Johnson 
•u.  Mclntosh,  8  Wheat.  543  :  Ogden  v.  Lee,  6  Hill,  546;  Strong  v.  Water- 
man, LE  Paige,  607 ;  Blair  v>  Pathkiller,  2  Yerg.  407. 

A  mere  reservation  of  the  Indian  right  to  a  certain  part,  within  de- 
scribed boundaries,  leaves  the  right  reserved  as  it  stood  before  the  cession. 
Godfreys.  Beardsley,  2  McLean,  412;  Wheeler  v.  Me-shin-go-me-sia,  30 
Ind.  402 ;  Penobscot  Indians  v.  Veazie,  58  Me.  402. 

An  individual  who  purchases  land  from  the  Indians  acquires  only  their 
title.  The  land  remains  a  part  of  their  territory,  and  is  held  under  them 
by  a  title  depending  on  their  laws.  The  purchaser  incorporates  himself 
with  them,  so  far  as  respects  the  property,  and  holds  the  title  under  their 
protection,  and  subject  to  their  laws.  If  they  annul  the  grant,  the  courts 
-of  the  United  States  can  not  interpose  for  the  protection  of  the  title.  A 
purchase  can  not  be  distinguished  from  a  grant  made  to  a  native  Indian, 
.authorizing  him  to  hold  a  particular  tract  of  land  in  severalty.  As  such 
a  grant  can  not  separate  the  Indian  from  his  nation,  nor  give  a  title  which 
the  courts  of  the  United  States  can  distinguish  from  the  title  of  his  tribe, 
as  the  land  may  be  still  conquered  from,  or  ceded  by  his  tribe,  there  is  no 
legal  principle  which  will  authorize  the  assertion,  that  different  conse- 
quences; are  attached  to  a  purchase  by  a  stranger.  Johnson  v.  Mclntosh,  8 
Wheat.  543 ;  Jackson  v.  Porter,  I  Paine,  457;  Vanhorne  v.  Dorrance,  2 
Dall.  306. 

The  Indians  may  dispose  of  their  land  with  the  consent  of  the  execu- 
tive, where  the  executive  is  authorized  to  give  such  consent  by  the  provis- 
ions of  any  treaty  or  act  of  Congress.  Hale  V.  Wilder,  8  Kans.  545. 

The  consent  of  the  executive  department  to  a  sale  of  land  by  Indians, 
where  it  was  not  authorized  by  a  treaty  or  an  act  of  Congress,  will  not 
make  a  sale  valid.  Hale  v.  Wilder,  8  Kans.  545. 

The  consent  of  the  Government  to  a  sale  of  lands  by  Indians  may  be 
given  by  treaty  or  by  an  act  of  Congress,  but  in  no  other  way.  Hale  v. 
Wilder,  8  Kans.  545. 

A  party  who  purchases  the  title  subject  to  the  Indian  right  of  occu- 
pancy, acquires  nothing  but  the  right  to  purchase  whenever  the  Indians  may 
choose  to  sell.  Ogden  v.  Lee,  6  Hill,  546 ;  Fellows  v.  Lee,  5  Den.  628  ; 
Wadsworth  v.  Buffalo  H.  Association,  15  Barb.  82. 

The  Indian  inhabitants  are  considered  merely  as  occupants  to  be  pro- 
tected while  in  peace  in  the  possession  of  their  lands,  but  incapable  of 


TERRITORIES.  307 

transferring  an  absolute  title  to  others.     Johnson  i>.  Mclntosh,  8  Wheat. 
543- 

The  Indian  right  to  land  is  not  merely  of  possession ;  that  of  alienation  is 
concomitant,  subject  only  to  ratification  and  confirmation  by  the  Govern- 
ment. Mitchel  v.  U.  S.  9  Pet.  711  ;  Wilson  v.  Wall,  6  Wall.  83. 

The  Indians  have  a  right  to  enjoy  their  possessions,  and  to  use  and  oc- 
cupy their  lands  in  any  manner  agreeable  to  them,  and  for  all  time  to  come. 
Wadsworth  v.  Buffalo  H.  Association,  1 5  Barb.  82, 

The  Indians  are  not  tenants  of  the  State,  but  hold  under  their  own 
original  title.  They  are  rightful  lords  of  the  soil,  and  may  cut  and  sell  the 
timber  thereon.  Ogden  v.  Lee,  6  Hill,  546. 

The  timber,  while  standing,  is  a  part  of  the  realty,  and  can  only  be  sold 
as  the  land  could  be.  Consequently,  the  timber  can  not  be  sold  until  right- 
fully severed.  U.  S.  v.  Cook,  19  Wall.  591. 

The  right  of  use  and  occupancy  by  the  Indians  is  unlimited.  They  may 
exercise  it  at  their  discretion.  If  the  lands  in  a  state  of  nature  are  not  in  a 
condition  for  profitable  use,  they  may  be  made  so.  U.  S.  v.  Cook,  19 
Wall.  591. 

If  desired  for  the  purposes  of  agriculture,  the  lands  may  be  cleared  of 
their  "timber  to  such  an  extent  as  may  be  reasonable  under  the  circum- 
stances. The  timber  taken  off  by  the  Indians  in  such  clearing,  may  be  sold 
by  them.  But,  to  justify  any  cutting  of  the  timber,  except  for  use  on  the 
premises  as  timber  or  its  product,  it  must  be  done  in  good  faith  for  the  im- 
provement of  the  land.  The  improvement  must  be  the  principal  thing, 
and  the  cutting  of  the  timber  the  incident  only.  Any  cutting  beyond  this  is 
waste,  and  unauthorized.  U.  S.  v.  Cook,  19  Wall.  591 ;  U.  S.  v.  Foster,  2 
Biss.  377. 

The  presumption  is  against  the  authority  of  the  Indians  to  cut  and  sell 
the  timber,  and  every  purchaser  from  them  is  charged  with  notice  of  this 
presumption.  U.  S.  v.  Cook,  19  Wall.  591. 

The  Indians  have  the  same  rights  in  the  lands  of  their  reservations  as  a 
tenant  for  life  has  in  the  lands  of  a  remainder-man.  What  a  tenant  for  life 
may  do  upon  the  lands  of  a  remainder-man,  the  Indians  may  do  upon  their 
reservations,  but  no  more.  U.  S.  v.  Cook,  19  Wall.  591. 

When  the  timber  is  rightfully  severed,  it  is  no  longer  a  part  of  the  land, 
and  there  is  no  restriction  upon  its  sale.  The  timber  may  then  be  sold  by 
the  Indians.  U.  S.  v.  Cook,  19  Wall.  591  ;  U.  S.  v.  Foster,  2  Biss.  377. 

If  the  timber  is  severed  for  the  purposes  of  sale  alone,  the  cutting  is 
wrongful,  and  the  timber  when  cut,  becomes  the  absolute  property  of  the 
United  States.  U.  S,  z/.  Cook,  19  Wall.  591. 


308  CONSTITUTION    OF    THE    UNITED    STATES. 

When  part  of  an  Indian  reservation  is  taken  for  public  uses,  with  the 
consent  of  the  tribe,  it  is  not  necessary  to  obtain  the  consent  of  the  owner 
of  the  right  of  pre-emption,  and  when  he  purchases  the  land  from  the  In- 
dians he  takes  it  subject  to  the  servitudes  or  easements  upon  it,  although 
no  compensation  was  made  to  him.  Wadsworth  v.  Buffalo  H.  Association, 
1 5  Barb.  82. 

The  nature  of  the  Indian  title  is  not  such  as  to  be  absolutely  repugnant 
to  a  seizin  in  fee  on  the  part  of  the  State  in  which  the  land  is  situated. 
Fletcher  v.  Peck,  6  Cranch,  87. 

A  State  law  respecting  lands  in  the  Indian  country,  to  take  effect  when 
the  Indian  title  is  extinguished,  is  valid,  and  will  be  enforced  when  the  State 
acquires  the  soil.  George  v.  Gamble,  2  Overt.  170. 

A  reservation  to  an  Indian  under  a  treaty,  gives  a  right  which  is  para- 
mount to  a  grant  from  a  State  made  while  the  Indian  occupancy  continued. 
Cornet  v.  Winton,  2  Yerg.  143. 

A  patent  by  a  State,  of  land  owned  by  it  in  an  Indian  country,  is  not 
void,  but  passes  a  title  subject  to  the  Indian  right  of  occupancy.  Clark  v. 
Smith,  13  Pet.  195. 

SECTION   IV. 

i.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion,  and  on  ap- 
plication of  the  legislature,  or  of  the  executive,  when 
the  legislature  can  not  be  convened,  against  domestic 
violence. 

The  recognition  of  the  legality  of  a  State  government  is  political  in  its 
nature,  and  is  placed  in  the  hands  of  the  political  department.  It  rests 
with  Congress  to  decide  what  government  is  the  established  one  in  a  State ; 
for,  as  the  United  States  guarantee  to  each  State  a  republican  form  of 
government,  Congress  must  necessarily  decide  what  government  is  estab- 
lished in  a  State  before  it  can  determine  whether  it  is  republican  or  not. 
Its  decision  is  binding  on  every  other  department  of  the  Government,  and 
can  not  be  questioned  in  a  judicial  tribunal.  Luther  v.  Borden,  7  How.  i ; 
Texas  v.  White,  7  Wall.  700  ;  Calhoun  v.  Calhoun,  2  Rich.  N.  S.  283. 

When  the  senators  and  representatives  of  a  State  are  admitted  into  the 
councils  of  the  Union,  the  authority  of  the  government  under  which  they 
are  appointed,  as  well  as  its  republican  character,  is  recognized  by  the 
proper  constitutional  authority.  Luther  v.  Borden,  7  How.  i  ;  Blair  v.: 
Ridgeley,  41  Mo.  63. 


STATE    GOVERNMENT.  309 

Under  this  clause,  Congress  has  the  power  to  re-establish  the  broken 
relations  of  a  rebellious  State  with  the  Union.  Texas  v.  White,  7  Wall. 
700. 

In  establishing  a  new  government  in  a  rebellious  State,  Congress  may 
require  that  the  new  State  Constitution  shall  pass  any  measure  which  Con- 
gress has  the  power  to  enact  and  enforce.  Shorter  v.  Cobb,  39  Geo.  285  ; 
Hardeman  z/.  Downer,  39  Geo.  425. 

Congress  is  the  only  department  of  the  Government  authorized  to  re- 
organize and  reconstruct  rebellious  States,  and  to  provide  for  the  establish- 
ment of  civil  governments  therein.  Powell  v.  Boon,  43  Ala.  469. 

In  the  exercise  of  the  power  conferred  by  this  clause,  as  in  the  exercise 
of  every  other  constitutional  power,  a  discretion  in  the  choice  of  means  is 
necessarily  allowed.  Texas  v.  White,  7  Wall.  700. 

Where  a  rebellious  State  frames  a  Constitution  which  is  approved  by 
•Congress,  it  is  estopped  to  deny  its  validity.  The  action  of  Congress  can 
not  be  inquired  into,  for  the  judicial  is  bound  to  follow  the  action  of  the 
political  department.  White  V.  Hart,  13  Wall.  646;  S.  C.  39  Geo.  306. 

The  approval  of  the  Constitution  of  a  rebellious  State  by  Congress  does 
not  make  the  Constitution  an  act  of  Congress.  Homestead  Cases,  23 
Gratt.  266;  In  re  Sarah  Kennedy,  2  Rich.  N.  S.  116;  White  v.  Hart,  13 
Wall.  646;  S.  C.  39  Geo.  306;  Marsh  v.  Burroughs,  I  Wood.  463. 

No  particular  government  is  designated  as  republican,  nor  is  the  exact 
form  to  be  guaranteed  in  any  manner  especially  indicated.  A  govern- 
ment may  be  republican,  although  women  are  not  made  voters.  Minor  v. 
Happersett,  21  Wall.  162. 

It  rests  with  Congress  to  determine  the  means  proper  to  protect  a  State 
against  invasion  or  domestic  violence.  Luther  v.  Borden,  7  How.  i. 

A  State  may  use  its  military  power  to  put  down  an  armed  insurrection 
too  strong  to  be  controlled  by  the  civil  authority.  The  power  is  essential 
to  the  existence  of  every  government,  essential  to  the  preservation  of  ordec 
and  free  institutions,  and  is  as  necessary  to  the  States  of  this  Union  as  to 
any  other  government.  The  State  itself  must  determine  what  degree  of 
force  the  crisis  demands.  If  the  State  government  deems  the  armed  oppo- 
sition so  formidable  as  to  require  the  use  of  its  military  force  and  the  declar- 
ation of  martial  law,  its  authority  can  not  be  questioned  by  the  courts.  The 
established  government  may  resort  to  the  rights  and  usages  of  war  to  main- 
tain itself  and  to  overcome  opposition.  Luther  v,  Borden,  4  How.  I. 


3IO  CONSTITUTION    OF    THE    UNITED    STATES. 


ARTICLE  V. 

i.  The  Congress,  whenever  two-thirds  of  both 
Houses  shall  deem  it  necessary,  shall  propose  amend- 
ments to  this  Constitution,  or,  on  the  application  of 
the  legislatures  of  two-thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  amendments,  which,  in 
either  case,  shall  be  valid,  to  all  intents  and  purposes, 
as  part  of  this  Constitution,  when  ratified  by  the  legis- 
latures of  three-fourths  of  the  several  States,  or  by  con- 
ventions in  three-fourths  thereof,  as  the  one  or  the 
other  mode  of  ratification  may  be  proposed  by  the 
Congress  ;  provided  that  no  amendment  which  may 
be  made  prior  to  the  year  one  thousand  eight  hundred 
and  eight,  shall  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  article  ;  and  that 
no  State,  without  its  consent,  shall  be  deprived  of  its. 
equal  suffrage  in  the  Senate. 


ARTICLE   VI. 

1.  All  debts  contracted  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shall  be 
as  valid  against  the  United  States  under  this  Constitu- 
tion as  under  the  confederation. 

2.  This  Constitution,  and  the  laws  of  the  United. 
States  which  shall  be  made  in  pursuance  thereof,  and 
.all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the   supreme 
law  of  the  land  ;  and  the  judges  in  every  State  shall 
be  bound  thereby,  anything  in  the  constitution  or  laws 
of  any  State  to  the  contrary  notwithstanding. 

Supremacy. 

The  departments  of  the  Government  are  legislative,  executive  and 
judicial.  They  are  co  ordinate  in  degree  to  the  extent  of  the  powers  dele- 
gated to  each  of  them.  Each  in  the  exercise  of  its  powers  is  independent 
of  the  other,  but  all  rightfully  done  by  either  is  binding  upon  the  others. 


STATUTES.  3II 

The  Constitution  is  supreme  over  all  of  them,  because  the  people  who  have 
ratified  it  have  made  it  so.  Consequently,  anything  which  may  be  done 
unauthorized  by  it  is  unlawful.  But  it  is  not  only  over  the  departments  of 
the  Government  that  the  Constitution  is  supreme.  It  is  so  to  the  extent  of 
its  delegated  powers  over  all  who  made  themselves  parties  to  it,  States  as 
well  as  persons,  within  those  concessions  of  sovereign  powers  yielded  by 
the  people  of  the  States,  when  they  accepted  the  Constitution  in  their  con- 
ventions. Nor  does  its  supremacy  end  there.  It  is  supreme  over  the 
people  of  the  United  States  aggregately  and  in  their  separate  sovereignties. 
Dodge  v.  Woolsey,  18  How.  331. 

The  "  supreme  law  of  the  land  "  is  intended  to  be  supreme,  as  con- 
strued and  applied  by  the  proper  tribunal ;  in  other  words,  it  is  not  to  be 
supreme  solely  in  its  dead  letter,  but  in  its  practical  construction.  Its  su- 
premacy is  not  to  be  alone  admitted  in  name,  but  in  fact.  As  the  laws  of  the 
Federal  Government  are  made  the  supreme  law  of  the  land,  and  as  the 
judicial  power  of  the  same  Government  extends  to  all  cases  in  law  and 
equity  arising  under  this  law,  it  follows  as  a  necessary  logical  result,  that 
the  determination  of  the  highest  tribunal  created  by  this  supreme  law  must 
be  final  and  conclusive  upon  all.  If  the  law  be  supreme,  the  highest  tri- 
bunal created  by  that  law  must  also  be  supreme.  If  the  law  is  supreme 
over  the  constitutions  and  laws  of  the  States,  then  it  is  a  necessary  result 
that  the  interpretation  of  this  law  by  the  highest  tribunal  created  by  the 
law  itself  must  be  equally  supreme  over  the  consti^rfKffifi  ancT^iytesf the 
State.  Warner  v.  Uncle  Sam,  9  Cal.  697. 


In  declaring  what  shall  be  the  supreme  law 

itself  is  first  mentioned,  and  not  the  laws  of  the  iTntted -States  -generally, 
but  those  only  which  shall  be  made  in  pursuance  of  the  Constitution  have 
that  rank.  Marbury  v.  Madison,  I  Cranch,  137. 

An  act  of  Congress  repugnant  to  the  Constitution,  is  void,  for  the  Con-     \T- 
stitution  is  the  fundamental  and  paramount  law.     Marbury  v.  Madison,  I 
Cranch,  137. 

The  words  "  which  shall  be  made  in  pursuance  thereof,"  show  the  pre- 
cision and  foresight  which  marks  every  clause  in  the  instrument.  The 
sovereignty  to  be  created  was  to  be  limited  in  its  powers  of  legislation,  and 
if  it  passed  a  law  not  authorized  by  its  enumerated  powers,  it  was  not  to 
be  regarded  as  the  supreme  law  of  the  land,  nor  were  the  State  judges 
bound  to  carry  it  into  effect.  Ableman  v.  Booth,  21  How.  506;  S.  C.  3 
Wis.  i. 

The  nullity  of  any  act  inconsistent  with  the  Constitution,  is  produced 
by  the  declaration  that  the  Constitution  is  the  supreme  law.  The  appro- 


312  CONSTITUTION    OF    THE    UNITED    STATES. 

priate  application  of  that  part  of  the  clause  which  confers  the  same  su- 
premacy on  laws  and  treaties,  is  to  such  acts  of  the  State  legislatures  as 
do  not  transcend  their  powers,  but  though  enacted  in  the  execution  of  ac- 
knowledged State  powers,  interfere  with  cr  are  contrary  to  the  laws  of  Con- 
gress made  in  pursuance  of  the  Constitution,  or  some  treaty  made  under 
the  authority  of  the  United  States.  In  every  such  case  the  act  of  Congress 
or  treaty  is  supreme,  and  the  law  of  the  State,  though  enacted  in  the  exer- 
cise of  powers  not  controverted,  must  yield  to  it.  Gibbons  if.  Ogden,  9 
Wheat,  i;  S.  C.  17  Johns.  488;  4  Johns.  Ch.  150;  Brown  v.  State,  12 
Wheat.  419;  Sinnot  v.  Davenport,  22  How.  227. 

The  Federal  Government,  though  limited  in  its  powers,  is  supreme,  and 
its  laws,  when  made  in  pursuance  of  the  Constitution,  form  the  supreme 
law  of  the  land,  •'  anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding."  M'Culloch  v.  State,  4  Wheat.  316. 

The  laws  of  the  United  States  are  not  to  be  considered  as  the  laws  of  a 
foreign  government.  They  are  laws  operating  upon  and  binding  on  the 
same  people  as  the  government  and  laws  of  the  several  States.  The  laws 
of  one  State  may  be  considered  as  foreign  in  relation  to  the  government 
and  actions  of  another  State,  because  in  no  sense  binding  without  the 
jurisdiction  of  the  State.  It  is  not  so,  however,  with  respect  to  the  laws  of 
the  United  States.  The  Government  of  the  United  States  and  that  of  the 
States,  ought  rather  to  be  considered  as  parts  of  the  same  system.  Stearns 
•v.  U.  S.  2  Paine,  300;  Gilmer  v.  Lime  Point,  18  Cal.  229. 

Treaties 

A  treaty  is  but  a  part  of  the  law  of  the  land,  and  what  is  forbidden  by 
the  Constitution  can  no  more  be  done  by  a  treaty  than  by  an  act  of  Con- 
gress. People  v.  Washington,  36  Cal.  658  ;  U.  S.  v.  Rhodes,  i  Abb.  C.  C. 
28. 

A  treaty  is  supreme  only  when  it  is  made  in  pursuance  of  that  author- 
ity which  has  been  conferred  upon  the  treaty-making  department,  and  in 
relation  to  those  subjects  the  jurisdiction  over  which  has  been  exclusively 
intrusted  to  Congress.  When  it  transcends  these  limits,  like  an  act  of 
Congress  which  transcends  the  constitutional  authority  of  that  body,  it 
can  not  supersede  a  State  law  which  enforces  or  exercises  any  power  of  the 
State  not  granted  away  by  the  Constitution.  People  v.  Naglee,  i  Cal.  231. 

The  validity  of  a  treaty  is  of  two  kinds,  viz.,  necessary  and  voluntary. 
Necessary  validity  is  that  which  results  from  the  treaty's  having  been  made 
by  persons  authorized  by  and  for  purposes  consistent  with  the  Constitution. 
Voluntary  validity  is  that  validity  which  a  treaty  that  has  become  voidable  by 
reason  of  violations,  afterwards  continues  to  retain,  by  the  silent  volition 
and  acquiescence  of  the  nation.  Jones  v.  Walker,  2  Paine,  688. 


TREATIES.  313 

The  necessary  validity  of  a  treaty  is  of  a  judicial  nature,  and  the  volun- 
tary validity  of  a  treaty  is  of  a  political  nature.  The  former  is  referable  to 
the  judiciary  and  the  latter  to  those  departments  which  are  charged  with 
the  political  interests  of  the  Government.  The  power  given  the  judiciary 
to  decide  on  the  validity  of  treaties,  is  by  the  nature  of  the  subject  limited 
to  their  necessary  validity, — necessary  because  while  performed  by  one 
party  it  rests  not  on  the  volition  of  the  other,  but  on  that  perfect  obligation 
which  contracts  authorize,  and  not  improperly  impose  on  both  parties. 
Jones  v.  Walker,  2  Paine,  688. 

Ordinarily  treaties  are  not  rules  prescribed  by  sovereigns  for  the  con- 
duct of  their  subjects,  but  contracts  by  which  they  agree  to  regulate  their 
own  conduct.  This  provision  of  the  Constitution  has  made  them  part  of 
the  municipal  law,  but  it  has  not  assigned  to  them  any  particular  degree  of 
authority  in  the  municipal  law,  nor  declared  whether  laws  so  enacted  shall 
or  shall  not  be  paramount  to  laws  otherwise  enacted.  Taylor  v.  Morton, 
2  Curt.  454. 

When  the  terms  of  a  stipulation  import  a  contract,  a  treaty  addresses 
itself  to  the  political,  not  the  judicial  department,  and  Congress  must  exe- 
cute the  contract  before  it  can  become  a  rule  of  court.  In  re  Metzger,  i 
Parker  Cr.  Cas.  108;  s.  C.  i  Edm.  Sel.  Cas.  399;  U.  S.  v.  Ferreira,  13 
How.  40;  Taylor  v.  Morton,  2  Curt.  454;  Foster  s/.  Neilson,  2  Pet.  253; 
Turner  v.  Missionary  Union,  5  McLean,  344. 

Where  money  is  required  to  be  appropriated  to  carry  out  a  treaty,  the 
concurrence  of  Congress  is  required  to  give  effect  to  the  treaty ;  for  money 
can  not  be  appropriated  by  the  treaty-making  power.  Turner  v.  Mission- 
ary Union,  5  McLean,  344. 

A  treaty  is  regarded  as  equivalent  to  an  act  of  Congress  whenever  it 
operates  of  itself  without  the  aid  of  any  legislative  provision.  Foster  v. 
Neilson,  2  Pet.  253;  U.  S.  v.  Percheman,  7  Pet.  51  ;  U.  S.  ?'.  Arredondo, 
6  Pet.  691 ;  Gordon  v.  Kerr,  i  Wash.  C.  C.  322. 

Congress  has  the  power  to  repeal  a  law  contained  in  a  treaty  when  it 
relates  to  subjects  which  the  Constitution  has  placed  under  the  legislative 
power.  An  act  of  Congress  will  therefore  prevail  over  a  treaty.  Ropes  v. 
Clinch,  8  Blatch.  304 ;  Webster  v.  Reid,  z'l  How.  437 ;  S.  C.  Morris,  467 ; 
Taylors.  Morton,  2  Curt.  454;  The  Clinton  Bridge,  i  Wool.  150;  S.  C.  10 
Wall  454. 

Whether  an  act  of  Congress  shall  prevail  over  a  treaty  is  a  question 
solely  of  municipal  law  as  distinguished  from  public  law.  The  foreign  sov- 
ereign, between  whom  and  the  United  States,  a  treaty  has  been  made,  has  a 
right  to  expect  and  require  its  stipulations  to  be  kept  with  scrupulous  good 
faith,  but  through  what  internal  arrangements  this  shall  be  done  is  exclu- 
sively for  the  consideration  of  the  United  States.  Taylor  v.  Morton,  2 
Curt.  454. 


I 
314  CONSTITUTION    OF    THE    UNITED    STATES. 

No  right  can  be  incident  to  one  department  which  necessarily  goes  to 
the  suspension  of  a  right  incident  to  another,  or  to  control,  suspend  or  de- 
feat its  operation.  Where  the  department  authorized  to  annul  a  voidable 
treaty  deems  it  most  conducive  to  the  national  interest  that  it  shall  con- 
tinue to  be  obeyed  and  observed,  no  right  is  incident  to  the  judiciary  to  de- 
clare it  void  in  a  single  instance.  Jones  v.  Walker,  2  Paine,  688 ;  Taylor 
v.  Morton,  2  Curt.  454. 

Four  things  are  apparent  on  a  view  of  this  article:  ist.  It  is  retro- 
spective. 2d.  The  constitution  or  laws  of  any  of  the  States,  so  far  as  either 
of  them  shall  be  found  contrary  to  a  treaty,  are  by  force  of  this  article  pros- 
trated before  the  treaty.  3d.  The  treaty  has  superior  power  to  the  legisla- 
ture of  any  State,  because  no  legislature  of  any  State  has  any  kind  of  power 
over  the  Constitution  which  was  its  creator.  4th*  It  is  the  declared  duty  of 
the  State  judges  to  determine  any  constitution  or  laws  of  any  State  con- 
trary to  any  treaty  made  under  the  authority  of  the  United  States  null  and 
void.  National  or  Federal  judges  are  bound  by  duty  and  oath  to  the  same 
conduct.  Ware  v.  Hilton,  3  Dall.  199;  Society  v.  New  Haven,  8  Wheat. 
464- 

A  treaty  concluded  by  the  President  and  Senate  binds  the  nation  in  the 
aggregate,  and  all  its  subordinate  authorities,  and  its  citizens  as  individuals, 
to  the  observance  of  the  stipulations  contained  in  it.  Fellows  v.  Denniston, 
23  N.  Y.  420. 

A  treaty  can  not  change  the  Constitution,  or  be  held  valid  if  it  be  in 
violation  of  that  instrument.  The  Cherokee  Tobacco,  u  Wall.  616;  S.  C. 
i  Dillon,  264. 

If  the  Supreme  Court  possesses  the  power  to  declare  a  treaty  void,  it 
will  never  exercise  it  but  in  a  very  clear  case  indeed.  Ware  v.  Hylton,  3 
Dall.  199. 

A  treaty  is  a  compact  formed  between  two  nations  or  communities 
having  the  right  of  self-government.  It  is  not  essential  that  each  party 
shall  possess  the  same  attributes  of  sovereignty  to  give  force  to  the  treaty. 
The  only  requisite  is  that  each  of  the  contracting  parties  shall  possess  the 
right  of  self-government,  and  the  power  to  perform  the  stipulations  of  the 
treaty.  It  must  be  admitted  that  the  Indians  sustain  a  peculiar  relation  to 
the  United  States.  They  do  not  constitute  a  foreign  State,  and  yet  having 
the  right  of  self-government  they,  in  some  sense,  form  a  State.  In  the 
management  of  their  internal  concerns  they  are  dependent  on  no  power. 
They  punish  offenses  under  their  own  laws,  and  in  doing  so  they  are  re- 
sponsible to  no  earthly  tribunal.  So  far  as  the  Indians,  as  distinct  com- 
munities, have  formed  a  connection  with  the  Federal  Government  by 
treaties,  such  connection  is  political  and  equally  binding  on  both  parties. 
Worcester  v.  State,  6  Pet.  515. 


SUPREME    OVER    STATES.  315 

The  Constitution,  by  declaring  treaties  already  made,  as  well  as  those 
to  be  made,  to  be  the  supreme  law  of  the  land,  has  adopted  and  sanctioned 
the  previous  treaties  with  the  Indian  nations,  and  consequently  admits  their 
rank  among1  those  powers  who  are  capable  of  making  treaties.  The  word 
"  treaty "  is  applied  to  Indians  as  well  as  to  other  nations  in  the  same 
sense.  Worcester  v.  State,  6  Pet.  515. 

After  an  Indian  treaty  has  been  executed  and  ratified  by  the  proper 
authorities  of  the  Government,  no  court  can  declare  it  invalid  because  the 
tribe  was  not  represented  by  its  chiefs  and  head  men  in  the  negotiation 
and  execution  of  it.  Fellows  v.  Blacksmith,  19  How.  366. 

Treaties  with  Indian  tribes  have  the  same  effect  and  dignity  as  treaties 
with  foreign  and  independent  nations.  They  are  treaties  within  the  mean- 
ing of  the  Constitution,  and  as  such  are  the  supreme  law  of  the  land. 
Turner  v.  Missionary  Union,  5  McLean,  344 ;  Worcester  v.  State,  6  Pet. 
515  ;  Fellows  v.  Denniston,  23  N.  Y.  420. 

After  a  treaty  has  been  executed  and  ratified  by  the  proper  authorities 
of  the  Government,  the  courts  can  nut  go  behind  it  for  the  purpose  of  an- 
nulling its  operation  by  inquiring  whether  the  tribe  with  whom  it  was 
made  was  properly  represented.  Fellows  v.  Blacksmith,  19  How.  366. 

Supreme  over  States. 

The  convention  which  framed  the  Constitution  was  elected  by  the  State 
legislatures.  But  the  instrument,  when  it  came  from  their  hands,  was  a 
mere  proposal  without  obligation  or  pretension  to  it.  It  was  reported  to 
the  then  existing  Congress  of  the  United  States,  with  a  request  that  it 
might  "  be  submitted  to  a  convention  of  delegates  chosen  in  each  State  by 
the  people  thereof,  under  the  recommendation  of  its  legislature,  for  their 
assent  and  ratification."  This  mode  of  proceeding  was  adopted,  and  by 
the  convention,  by  Congress  and  by  the  State  legislatures,  the  instrument 
was  submitted  to  the  people.  They  acted  upon  it  in  the  only  manner  in 
which  they  can  act  safely,  effectively  and  wisely  on  such  a  subject,  by  as- 
sembling in  convention.  It  is  true  they  assembled  in  their  several  States, 
but  the  measures  they  adopted  did  not,  on  that  account,  cease  to  be  the 
measures  of  the  people  themselves,  or  become  the  measures  of  the  State 
governments.  From  these  conventions  the  Constitution  derives  its  whole 
authority.  The  Government  proceeds  directly  from  the  people,  and  is  or- 
dained and  established  in  the  name  of  the  people.  The  assent  of  the  States 
in  their  sovereign  capacity,  is  implied  in  calling  a  convention  and  thus  sub- 
mitting that  instrument  to  the  people.  But  the  people  were  at  perfect  lib- 
erty to  accept  or  reject  it,  and  their  act  was  final.  It  required  not  the 
affirmance,  and  could  not  be  negatived  by  the  State  governments.  The 
Constitution  when  thus  adopted  was  of  complete  obligation,  and  bound 
the  State  sovereignties.  The  Federal  Government  is  emphatically  a  gov- 


316  CONSTITUTION    OF    THE    UNITED    STATES. 

•eminent  of  the  people.  In  form  and  substance  it  emanates  from  them. 
Its  powers  are  granted  by  them,  and  are  to  be  exercised  directly  on  them 
and  for  their  benefit.  M'Culloch  -z/.  State,  4  Wheat.  316;  Comm.  v.  Mor- 
rison, 2  A.  K.  Marsh.  75 ;  Martin  v.  Hunter,  I  Wheat.  304 ;  s.  C.  4 
Munf.  i. 

Although  the  powers  of  the  Federal  Government  are  limited,  yet  within 
those  limits  it  is  a  perfect  government,  as  any  other,  having  all  the  faculties 
and  properties  belonging  to  a  government,  with  a  perfect  right  to  use  them 
freely  in  order  to  accomplish  the  objects  of  its  institution.  U.  S.  v.  Mau- 
rice, 2  Brock.  96  ;  Cohens  v.  Virginia,  6  Wheat.  264. 

The  General  Government,  though  limited  as  to  its  objects,  is  supreme 
-as  to  those  objects.  Cohens  v.  Virginia,  6  Wheat.  264. 

The  powers  of  sovereignty  are  divided  between  the-  Federal  Govern- 
ment and  the  governments  of  the  States.  They  are  each  sovereign  with 
respect  to  the  objects  committed  to  it,  and  neither  sovereign  with  respect 
io  the  objects  committed  to  the  other.  M'Culloch  v.  State,  4  Wheat.  316. 

Within  its  limits  the  Government  is  sovereign  and  independent,  and 
any  interference  by  the  State  governments  tending  to  the  interruption  of 
the  full  legitimate  exercise  of  the  powers  granted  to  it  is  in  conflict  with 
that  clause  of  the  Constitution  which  makes  the  Constitution  and  the  laws 
of  the  United  States  passed  in  pursuance  thereof,  "  the  supreme  law  of 
the  land."  The  result  of  this  doctrine  is  that  the  exercise  of  any  authority 
by  a  State  government,  trenching  upon  any  of  the  powers  granted  to  the 
General  Government,  is  to  the  extent  of  the  interference,  an  attempt  to  re- 
.sume  the  grant  in  defiance  of  constitutional  obligation.  Bank  of  Com- 
merce v.  New  York,  2  Black,  620;  S.  C.  23  N.  Y.  192  ;  32  Barb.  509. 

State  Power§  Superseded. 

The  powers  of  Government  may  be  divided  into  four  classes :  i.  Those 
which  belong  exclusively  to  the  States.  2.  Those  which  belong  exclusively 
to  the  United  States.  3.  Those  which  may  be  exercised  concurrently  and 
independently  by  both.  4.  Those  which  may  be  exercised  by  the  States, 
but  only  with  the  consent,  express  or  implied,  of  Congress.  Farmers'  Na- 
tional Bank  v.  Bearing,  91  U.  S.  29. 

There  are  but  three  cases  in  which  the  several  States  have  no  power  to 
legislate:  i.  Where  they  are  expressly  prohibited.  2.  Where  exclusive 
power  is  expressly  vested  in  the  United  States.  3.  Where  the  power 
vested  in  the  United  States  is  in  its  nature  exclusive.  Farmers'  Bank  v. 
-.Smith,  6  Wheat.  131  ;  S.  C.  3  S.  &  R.  63  ;  Adams  v.  Storey,  I  Paine,  79; 
Cox  v.  State,  3  Blackf.  193 ;  Passenger  Cases,  7  How.  283;  s.  C.  45  Mass. 
282;  Prigg  v.  Comm.  16  Pet.  539;  Jack  v.  Martin,  12  Wend.  311 ;  S.  C.  14 
Wend.  509;  People  v.  Naglee,  i  Cal.  231. 


STATE    POWERS    SUPERSEDED.  317 

The  mere  grant  of  a  power  to  Congress  does  not  imply  a  prohibition 
on  the  States  to  exercise  the  same  power.  Sturges  v.  Crowninshield,  4 
Wheat.  122. 

Where  an  authority  is  granted  to  the  Federal  Government,  to  which  a 
similar  authority  in  the  States  would  be  absolutely  and  totally  contradictory 
and  repugnant,  there  the  authority  of  the  Federal  Government  is  neces- 
sarily exclusive,  and  the  same  power  can  not  be  constitutionally  exercised 
by  the  States.  Holmes  v.  Jennison,  14  Pet.  540. 

No  legislation  by  Congress  is  wanted  to  make  more  binding  upon  the 
States  what  they  have  bound  themselves  in  absolute  terms  not  to  do. 
Dodge  v.  Woolsey,  18  How.  331. 

It  does  not  always  follow  that  the  States  have  relinquished  their  own 
powers  because  they  have  granted  similar  powers  to  the  United  States. 
They  retain  their  powers  unless  they  are  expressly  deprived  of  them,  or 
they  have  vested  such  powers  in  Congress  as  are  in  their  own  nature  in- 
compatible with  the  exercise  of  the  same  powers  by  themselves.  Houston 
v.  Moore,  5  Wheat.  I ;  S.  C.  3  S.  &  R.  169 ;  Blanchard  v.  Russell,  13  Mass, 
i  ;  Farmers'  Bank  v.  Smith,  6  Wheat.  131  ;  S.  C.  3  S.  &  R.  63 ;  Weaver  v. 
Fegley,  29  Penn.  27. 

When  the  prohibition  is  express,  all  power  of  the  State  ceased  im- 
mediately on  the  adoption  of  the  Constitution.  Houston  z/.  Moore,  5 
Wheat,  i  ;  s.  C.  3  S.  &  R.  169. 

Where  the  authority  of  the  States  is  taken  away  by  implication,  they 
may  continue  to  act  until  the  United  States  exercise  their  power,  because 
until  such  exercise  there  can  be  no  incompatibility.  Houston  v.  Moorer 
5  Wheat,  i  ;  S.  C.  3  S.  &  R.  169;  Cooley  i>.  Philadelphia,  12  How.  299; 
Freeman  v.  Robinson,  7  Ind.  321. 

This  concurrent  power  of  legislation  does  not  extend  to  every  possible 
case  in  which  its  exercise  by  the  States  has  not  been  expressly  prohibited. 
The  confusion  resulting  from  such  a  practice  would  be  endless.  When- 
ever the  terms  in  which  a  power  is  granted  to  Congress,  or  the  nature  of 
the  power,  require  that  it  should  be  exercised  exclusively  by  Congress,  the 
subject  is  as  completely  taken  from  the  State  legislatures  as  if  they  had 
been  expressly  forbidden  to  act  on  it.  Sturges  v.  Crowninshield,  4  Wheat. 
122;  Holmes  v.  Jennison,  14  Pet.  540. 

All  State  authority  on  a  subject  over  which  Congress  may  assume  ex- 
clusive power  does  not  cease  when  Congress  has  exercised  the  power  only 
partially.  The  power  of  the  States  exists  over  such  cases  as  the  laws  of 
the  Union  may  not  reach.  Houston  v.  Moore,  5  Wheat,  i ;  s.  C.  3  S.  &  R. 
169;  Sturges  v.  Crowninshield,  4  Wheat.  122;  Eells  v.  People,  4  Scam. 
498  ;  Fitch  v.  Livingston,  4  Sandf.  492;  Moore  v.  People,  14  How.  13  ;  S. 
C.  5  111.  298;  Nelson  v.  People,  33  111.  390. 


318  CONSTITUTION    OF    THE    UNITED    STATES. 

Where  Congress  has  exercised  a  power  over  a  particular  subject  given 
to  it  by  the  Constitution,  it  is  not  competent  for  State  legislation  to  add  to 
the  provisions  of  Congress  upon  that  subject,  for  the  will  of  Congress  upon 
the  whole  subject  is  as  clearly  established  by  what  it  has  not  declared  as 
by  what  it  has  expressed.  The  State  legislatures  have  no  right,  by  way  of 
complement  to  the  legislation  of  Congress,  to  prescribe  additional  regula- 
tions, and  what  they  may  deem  auxiliary  provisions  for  the  same  purpose. 
Prigg  v.  Comm.  16  Pet.  539;  Jack  V.  Martin,  12  Wend.  311;  s.  C.  14 
Wend.  509 ;  People  v.  Brooks,  4  Denio,  469 ;  Graves  z>.  State,  I  Smith 
(Ind.)  258 ;  Thornton's  Case,  11  111.  32  ;  In  re  George  Kirk,  i  Parker  Cr. 
Cas.  67  ;  Henry  v.  Lowell,  16  Barb.  268  ;  Donnell  v.  State,  3  Ind.  480  ;  De- 
gant  v.  Michael,  2  Ind.  396. 

A  State  may  pass  a  law  to  aid  in  accomplishing  the  purpose  intended 
by  an  act  of  Congress.  Robinson  v.  Flanders,  29  Ind.  10. 

While  a  State  is  acting  within  the  legitimate  scope  of  its  power  as  to 
the  end  to  be  attained,  it  may  use  whatsoever  means,  being  appropriate  to 
that  end,  it  may  think  fit,  although  they  may  be  the  same,  or  so  nearly  the 
same  as  scarcely  to  be  distinguishable  from  those  adopted  by  Congress, 
acting  under  a  different  power,  subject  only  to  this  limitation  that,  in  the 
.  event  of  collision,  the  law  of  the  State  must  yield  to  the  law  of  Congress. 
Gibbons  v.  Ogden,  9  Wheat.  I ;  S.  C.  17  Johns.  488  ;  4  Johns.  Ch.  150; 
Mayor  v.  Miln,  n  Pet.  102;  s.  C.  2  Paine,  429;  Charleston  v,  Rogers,  2 
McC.  495  ;  Norris  v.  Boston,  45  Mass.  282. 

In  considering  whether  it  is  competent  for  a  State  to  pass  any  particular 
law,  the  courts  look  rather  to  the  ends  to  be  attained  than  to  the  particular 
-enactments  by  which  they  are  to  be  reached.  Norris  v.  Boston,  45  Mass. 
287. 

-^  Some  State  constitutions  were  formed  before,  some  since  that  of  the 
United  States.  Their  relation  to  each  other  is  not  in  any  degree  dependent 
on  this  circumstance.  Their  respective  powers  must  be.  precisely  the  same 
as  if  they  had  been  formed  at  the  same  time.  McCulloch  v.  State,  4 
Wheat.  316. 

The  Constitution  was  made  by  and  for  the  protection  of  the  people  of 
the  United  States.  The  restraints  imposed  by  that  instrument  upon  the 
legislative  powers  of  the  several  States  can  affect  them  only  after  they  be- 
come States  of  the  Union  under  the  provisions  of  the  Constitution,  and 
consent  to  be  bound  by  it.  League  v.  De  Young,  1 1  How.  185  ;  Herman 
V.  Phalen,  14  How.  79. 

Congress  can  not  in  any  manner  regrant  or  reconvey  to  the  States  a 
power  of  which  they  have  been  divested  by  the  Constitution.  Cooley  v. 
Philadelphia,  12  How.  299;  City  V.  Churchill,  43  Barb.  550;  S.  C.  31  N. 
Y.  161  ;  Homestead  Cases,  23  Gratt.  266. 


STATE    POWERS    SUPERSEDED.  319 

The  States,  or  rather  the  people  forming  them,  though  sovereign  as  to 
the  powers  not  delegated  to  the  United  States  by  the  Constitution,  or 
prohibited  by  it  to  the  States,  are  not  independent  of  each  other  in  respect 
to  the  powers  ceded  in  the  Constitution.  Their  union  by  the  Constitution 
was  made  by  each  of  them  conceding  portions  of  their  equal  sovereignties 
for  all  of  them,  and  it  acts  upon  the  States  conjunctively  and  separately, 
and  in  the  same  manner  upon  their  citizens,  aggregately  in  some  things 
and  in  others  individually,  in  many  of  their  relations  of  business,  and  also 
upon  their  civil  conduct,  so  far  as  their  obedience  to  the  laws  of  Congress 
is  concerned.  In  such  a  union  the  States  are  bound  by  all  of  those  prin- 
ciples of  justice  which  bind  individuals  to  their  contracts.  They  are  bound 
by  their  mutual  acquiescence  in  the  powers  of  the  Constitution,  that  neither 
of  them  shall  be  the  judge,  or  shall  be  allowed  to  be  the  final  judge,  of  the 
powers  of  the  Constitution,  or  of  the  interpretation  of  the  laws  of  Con- 
gress. This  is  not  so  because  their  sovereignty  is  impaired,  but  the  exe,r- 
cise  of  it  is  diminished  in  quantity,  because  they  have  in  certain  respects 
put  restraints  upon  that  exercise  in  virtue  of  voluntary  engagements. 
Dodge  v.  Woolsey,  18  How.  331. 

To  determine  whether  there  is  a  conflict  with  the  powers  of  the  General 
Government,  the  alleged  power  must  be  considered  with  reference  to  its 
consequences ;  for  its  effects,  when  carriedout,  are  the  only  criterion  by  which 
a  judgment  can  be  formed.  Lin  Sing  v.  Washburn,  20  Cal.  534. 

The  States  are  not  to  be  divested  of  their  powers  by  inferences,  unless 
the  inferences  are  inevitable.  Farmers'  Bank  v.  Smith,  6  Wheat.  131 ;  S.  C. 
3  S.  &  R.  63;  Weaver  v.  Fegley,  29  Penn.  27. 

If  a  State  law  and  an  act  of  Congress  relate  to  the  same  thing,  and  are 
different  in  their  character,  there  is  no  necessary  conflict  between  them  if 
the  intention  of  both  acts  can  be  fully  carried  out  and  practically  applied ; 
but  if  the  intention  of  both  can  not  be  fully  carried  out,  then  there  is  a 
necessary  conflict,  and  one  or  the  other  must  yield.  Mitchell  v.  Steelman, 
S  Cal.  363. 

Every  citizen  of  the  United  States  is  also  a  citizen  of  a  State  or  terri- 
tory. He  may  be  said  to  owe  allegiance  to  two  sovereigns,  and  may  be 
liable  to  punishment  for  an  infraction  of  the  laws  of  either.  The  same  act 
may  be  an  offense  or  transgression  of  the  laws  of  either.  That  either  or 
both  may,  if  they  see  fit,  punish  the  offender,  can  not  be  doubted.  Yet  it 
can  not  be  truly  averred  that  the  offender  has  been  twice  punished  for  the 
.same  offense,  but  only  that  by  one  act  he  has  committed  two  offenses,  for 
•each  of  which  he  is  justly  punishable.  He  can  not  plead  the  punishment 
by  one  in  bar  to  a  conviction  by  the  other.  Moore  v.  People,  14  How.  13; 
S.  C.  5  111.  298;  Fox  z/.  State,  5  How.  410 ;  People  v.  Sheriff,  I  Parker  Cr. 
Cas.  659  ;  State  v.  Moore,  6  Ind.  436  ;  Territory  v.  Coleman,  I  Oregon, 
191. 


320  CONSTITUTION    OF    THE    UNITED    STATES. 

In  order  to  render  a  State  statute  unconstitutional  because  of  "its  collis- 
ion with  the  powers  granted  to  the  General  Government,  there  must  be 
some  conflict  or  repugnancy  or  incompatibility.  It  must,  either  in  its  ac- 
tual exercise  or  in  its  nature,  be  of  a  character  to  control,  defeat,  limit  or 
impair  some  power  of  the  General  Government,  or  interfere  with  its  action 
so  that  if  admitted,  that  power  could  no  longer  be  efficacious  and  adequate 
to  accomplish  the  object  for  which  it  was  given.  If  it  merely  operates 
upon  the  same  subject-matter,  but  not  in  such  a  manner  as  to  show  a 
plain  incompatibility,  a  direct  repugnancy  or  an  extreme  practical  incon- 
venience, it  is  not  unconstitutional,  because  there  may  be  a  possible  or  po- 
tential inconvenience.  Pierce  v.  State,  13  N.  H.  336;  s.  C.  5  How.  504; 
U.  S.  v.  Bedford  Bridge,  I  W.  &  M.  401 ;  Sinnot  v.  Davenport,  22  How. 
227. 

If,  in  a  specified  case,  the  people  have  thought  proper  to  bestow  certain 
powers  on  Congress  as  the  safest  depositary  of  them,  and  Congress  has 
legislated  within  the  scope  of  them,  the  people  have  reason  to  complain 
that  the  same  powers  should  be  exercised  at  the  same  time  by  the  State 
legislatures.  To  subject  them  to  the  operation  of  two  laws  upon  the  same 
subject,  dictated  by  distinct  wills,  particularly  in  a  case  inflicting  pains  and 
penalties,  is  something  very  much  like  oppression  if  not  worse.  Houston 
v.  Moore,  5  Wheat,  i ;  s.  C.  3  S.  &  R.  169. 


PoJice   Power§. 

A  State  has  the  same  undeniable  and  unlimited  jurisdiction  over  all 
persons  and  things  within  its  territorial  limits  as  any  foreign  nation,  where 
that  jurisdiction  is  not  surrendered  or  restrained  by  the  Constitution.  By 
virtue  of  this,  it  not  only  is  the  right  but  the  bounden  and  solemn  duty  of  a 
State  to  advance  the  safety,  happiness  and  prosperity  of  its  people,  and  to 
provide  for  its  general  welfare  by  any  and  every  act  of  legislation  which  it 
may  deem  to  be  conducive  to  these  ends  where  the  power  over  the  particu- 
lar subject  or  the  manner  of  its  exercise  is  not  surrendered  or  restrained. 
All  those  powers  which  relate  to  merely  municipal  legislation,  or  what  may 
perhaps  more  properly  be  called  internal  police,  are  not  thus  surren- 
dered or  restrained,  and  consequently,  in  relation  to  these,  the  authority  of 
a  State  is  complete,  unqualified  and  exclusive.  Mayor  v.  Miln,  11  Pet. 
102;  S.  C.  2  Paine,  429;  License  Cases,  5  How.  504;  s.  C.  13  N.  H.  536; 
Fitch  v.  Livingston,  4  Sandf .  492 ;  Ex  parte  Perkins,  2  Cal.  424. 

The  powers  necessary  to  the  regulation  of  the  police,  morals,  health, 
internal  commerce  and  general  prosperity  of  the  community,  are  subject  to 
State  regulation,  and  the  objects  to  be  accomplished  by  them  are  to  be 
reached  and  effected  by  any  appropriate  means  which  do  not  interfere  with 
the  exercise  of  any  of  the  powers  vested  in^  the  General  Government. 
Nelson  v.  People,  33  111.  390 ;  Eells  v.  People,  5  111.  498  ;  Fitch  v.  Living- 


STATE    TAXES.  321 

•stem,  4  Sandf.  492  ;  Comm.  v.  Kimball,  41  Mass.  359 ;  Prigg  V.  Comm.  16 
Pet.  539;  Ex  parte  Perkins,  2  Cal.  424  ;  Willard  v.  People,  5  111.  461. 

The  States  may  pass  poor  laws  and  laws  to  prevent  the  introduction  of 
paupers  or  persons  likely  to  become  paupers.  Norris  v,  Boston,  45  Mass. 
282;  Mayors.  Miln,  11  Pet.  102;  S.  C.  2  Paine,  429. 

Every  law  relates  to  internal  police  which  concerns  the  welfare  of  the 
whole  people  of  a  State,  or  any  individual  in  it,  whether  it  relates  to  their 
rights  or  their  duties  ;  whether  it  respects  them  as  men  or  as  citizens  of  the 
State  ;  whether  in  their  public  or  private  relations  ;  whether  it  relates  to 
the  rights  of  persons  or  of  property,  of  the  whole  people  of  a  State  or  of 
any  individual  within  it,  and  whose  operation  is  within  the  territorial  limits 
of  the  State,  and  upon  the  persons  and  things  within  its  jurisdiction.  Mayor 
•v.  Miln,  ii  Pet.  102  ;  S.  C.  2  Paine,  429. 

The  police  power  of  a  State  can  not  be  exercised  in  regard  to  a  subject- 
matter  which  has  been  confided  exclusively  to  the  discretion  of  Congress. 
Henderson  v.  Mayor,  92  U.  S.  R.  259. 

The  police  power  of  a  State  is  one  of  the  different  means  used  by 
sovereignty  to  accomplish  that  great  object;,  the  good  of  the  State.  Police 
•powers  and  sovereign  powers  are  the  same.  Passenger  Cases,  7  How.  283 ; 
s.  c.  45  Mass.  282. 

Slate  Taxe§. 

The  power  of  taxation  is  indispensable  to  the  existence  of  the  State 
governments,  and  is  a  power  which,  in  its  own  nature,  is  capable  of  resid- 
ing in  and  being  exercised  by  different  authorities  at  the  same  time.  Tax- 
ation is  the  simple  operation  of  taking  small  portions  from  a  perpetually 
accumulating  mass  susceptible  of  almost  infinite  division,  and  a  power  in 
one  to  take  what  is  necessary  for  certain  purposes,  is  not  in  its  nature  in- 
compatible with  a  power  in  another  to  take  what  is  necessary  for  other 
purposes.  Gibbons  v.  Ogden,  9  Wheat,  i;  S.  C.  17  Johns.  488;  4  Johns. 
Ch.  150;  Biddle  v.  Comm.  13  S.  &  R.  405  ;  M'Culloch  v.  State,  4  Wheat. 
316;  Comm.  v.  Morrison,  2  A.  K.  Marsh.  75;  Raguet  v.  Wade,  4  Ohio, 
107;  People  v.  Naglee,  i  Cal.  231. 

Taxation  is  an  incident  of  sovereignty,  and  is  coextensive  with  that  to 
which  it  is  an  incident.  All  subjects  over  which  the  sovereign  power  of  a 
State  extends,  are  objects  of  taxation,  but  those  over  which  it  does  not  ex- 
tend are  upon  the  soundest  principles  exempt  from  taxation.  The  sover- 
eignty of  a  State  extends  to  everything  which  exists  by  its  own  authority 
or  is  introduced  by  its  permission,  but  it  does  not  extend  to  those  means 
which  are  employed  by  Congress  to  carry  into  execution  powers  conferred 
on  that  body  by  the  people  of  the  United  States.  M'Culloch  v.  State,  4 
Wheat.  316;  City  v.  Churchill,  33  N.  Y.  161 ;  S.  C.  43  Barb.  550. 
21 


322  CONSTITUTION    OF    THE    UNITED    STATES. 

The  taxing  power  of  the  States  must  have  some  limits.  It  can  not 
reach  and  restrain  the  action  of  the  National  Government  within  its  proper 
sphere.  It  can  not  reach  the  administration  of  justice  in  the  Federal 
courts,  or  the  collection  of  the  taxes  of  the  United  States,  or  restrain  the 
operation  of  any  law  which  Congress  may  constitutionally  pass.  It  can 
not  interfere  with  any  regulation  of  commerce.  Brown  v.  State,  12  Wheat. 
419;  Comm.  v.  Morrison,  2  A.  K.  Marsh.  75  ;  Howell  v.  State,  3  Gill,  14. 

The  exemption  of  Federal  agencies  from  State  taxation  is  dependent, 
not  upon  the  nature  of  the  agents,  or  upon  the  mode  of  their  constitu- 
tion, or  upon  the  fact  that  they  are  agents,  but  upon  the  effect  of  the  tax ; 
that  is,  upon  the  question  whether  the  tax  does  in  truth  deprive  them  of 
the  power  to  serve  the  Government  as  they  were  intended  to  serve  it,  or 
does  hinder  the  efficient  exercise  of  their  power.  Railroad  Co.  v.  Peniston,. 
1 8  Wall.  5. 

The  agencies  of  the  Federal  Government  are  only  exempt  from  State 
legislation  so  far  as  that  legislation  may  interfere  with  or  impair  their  effi- 
ciency in  performing  the  functions  by  which  they  are  designed  to  serve  that 
Government.  National  Bank  v.  Comm.  9  Wall.  353. 

The  power  to  tax  involves  the  power  to  destroy.  The  power  to  de- 
stroy may  defeat  and  render  useless  the  power  to  create.  The  several 
States  have  no  power  by  taxation  or  otherwise  to  retard,  impede,  burden 
or  in  any  manner  control  the  operations  of  the  constitutional  laws  en- 
acted by  Congress  to  carry  into  execution  the  powers  vested  in  the  General 
Government.  M'Culloch  v.  State,  4  Wheat.  316;  Weston  v.  Charleston^ 
2  Pet.  449 ;  s.  C.  Harp.  340. 

There  is  a  difference  between  a  tax  imposed  by  the  Federal  Govern- 
ment and  a  tax  imposed  by  the  State  Governments.  The  people  of  all  the 
States  have  created  the  Federal  Government,  and  have  conferred  upon  it 
the  general  power  of  taxation.  The  people  of  all  the  States  and  the 
States  themselves  are  represented  in  Congress,  and  by  their  representatives 
exercise  this  power.  When  they  tax  the  chartered  institutions  of  the 
State,  they  tax  their  constituents,  and  these  taxes  must  be  uniform.  But 
when  a  State  taxes  the  operations  of  the  Federal  Government,  it  acts  upon 
institutions  not  created  by  itself,  but  by  people  over  whom  it  claims  no- 
control.  It  acts  upon  the  measures  of  a  Government  created  by  others  as 
well  as  itself,  for  the  benefit  of  others  in  common  with  its  own  people. 
M'Culloch  v.  State,  4  Wheat.  316. 

The  taxing  power  of  a  State  is  one  of  its  attributes  of  sovereignty. 
Where  there  has  been  no  compact  with  the  Federal  Government,  or  ces- 
sion of  jurisdiction  for  the  purposes  specified  in  the  Constitution,  this 
power  reaches  all  the  property  and  business  within  the  State,  which  are 
not  properly  denominated  the  means  of  the  General  Government.  This 


STATE    TAXES.  323 

power  may  be  exercised  at  the  discretion  of  the  State.     Nathan  v.  Loui- 
siana, 8  How.  73;  People  z/.  Coleman,  4  Cal.  46. 

The  measure  of  the  power  of  taxation  residing-  in  a  State  is  the  extent 
of  sovereignty  which  the  people  of  a  single  State  possess,  and  can  confer 
on  its  government.  M'Culloch  v.  State,  4  Wheat.  316;  Howell  v.  State, 
3  Gill,  14-. 

A  State  tax  which  remotely  affects  the  efficient  exercise  of  a  Federal 
power  is  not  for  that  reason  alone  prohibited.  Railroad  Co.  -u.  Peniston, 
1 8  Wall.  5. 

No  constitutional  implication  prohibits  a  State  tax  upon  the  property  of 
an  agent  of  the  Government,  merely  because  it  is  the  property  of  such 
agent.  Railroad  Co.  v.  Peniston,  18  Wall.  5. 

The  State  power  of  taxation  is  restrained  by  the  Constitution  when- 
ever its  exercise  conflicts  with  the  perfect  execution  of  the  powers  dele- 
gated to  the  United  States.  That  occurs  when  taxation  by  a  State  acts 
upon  the  instruments,  emoluments  and  persons  which  the  United  States 
may  use  and  employ  as  necessary  and  proper  means  to  execute  its  sover- 
eign powers.  An  officer  is  a  means  to  execute  those  powers,  and  his 
salary  is  the  means  by  which  his  services  are  procured  and  retained. 
Hence,  the  salary  is  not  liable  to  State  taxation.  Dobbins  v.  Commis- 
sioners, 1 6  Pet.  435  ;  S.  C.  7  Watts,  513. 

A  State  may  tax  the  salary  of  a  clerk  in  the  post  office,  who  is  ap- 
pointed upon  the  recommendation  of  the  deputy  postmaster,  and  the  ap- 
proval of  the  postmaster  general.  Melcher  v.  Boston,  50  Mass.  73. 

A  party  who  obtains  a  license  to  trade  from  the  Government,  is  not  an 
officer,  nor  as  such  exempt  from  taxation  by  a  State.  State  v.  Bell, 
Phillips,  76. 

The  taxing  power  of  the  State  can  not  be  exerted  against  the  public 
money  in  the  treasury,  the  precious  metals  in  the  mint,  or  the  lots,  struc- 
tures, ships,  material  of  war  or  other  property  devoted  to  public  purposes 
by  the  General  Government.  City  v.  Churchill,  33  N.  Y.  161  ;  S.  C.  43 
Barb.  550. 

A  State  tax  on  stock  issued  by  the  Government  for  loans  is  a  tax  on 
the  contract,  a  tax  on  the  power  to  borrow  money  on  the  credit  of  the. 
United  States,  and  consequently  is  repugnant  to  the  Constitution.  Weston 
V.Charleston,  2  Pet.  449;  S  C.  Harp.  340;  Bank  v.  Commissioners,  2 
Black,  620;  S.  C.  23  N.  Y.  192;  32  Barb.  509;  Opinion  of  Justices,  53 
N.  H.  634;  contra,  People  v.  Commissioners,  37  Barb.  635 ;  S.  C.  26  N.  Y. 
163. 

Congress  may  forbid  any  taxation  of  the  stock  and  bonds  of  the  United 


324  CONSTITUTION    OF    THE    UNITED    STATES. 

States,  if  in  its  judgment .  such  restriction  is  necessary  to  carry  out  the 
power  to  borrow  money.  Whether  it  exercises  that  power  wisely  or  not  is 
not  for  the  courts  to  inquire.  People  v.  Commissioners,  37  Barb.  635 ;  s.  C. 
26N.Y.  163. 

A  State  can  not  tax  the  income  derived  from  interest  paid  on  bonds  of 
the  United  States.  Bank  v.  Comm.  9  Bush,  46 ;  Opinion  of  Justices,  53 
N.  H.  634. 

A  State  can  not  tax  the  stock  or  bonds  of  the  United  States,  although 
it  taxes  the  stock  or  bonds  the  same  as  all  other  property  in  the  State. 
Bank  v.  Commissioners,  2  Black,  620 ;  S.  C.  23  N.  Y.  192  ;  32  Barb.  509  ; 
Newark  City  Bank  v.  Assessor,  30  N.  J.  I. 

A  person  who  deals  in  bonds  of  the  United  States  is  not  liable  to  taxa- 
tion under  State  laws  on  the  capital  in  business  thus  invested.  Chicago  v. 
Lunt,  52  111.  414. 

A  State  can  not  tax  the  notes  of  the  United  States  issued  and  intended 
to  circulate  as  money,  when  they  are  made  exempt  from  taxation  by  Con- 
gress. Bank  v.  Supervisors,  7  Wall.  26;  Montgomery  v.  Elston,  32  Ind. 
27;  Home  v.  Green,  52  Miss.  452. 

Internal  revenue  stamps  issued  by  the  United  States  as  a  means  of  col- 
lecting a  tax  are  not  liable  to  taxation  by  a  State.  Palfrey  v.  Boston,  101 
Mass. -329. 

A  State  can  not  tax  a  certificate  of  indebtedness  issued  by  the  United 
States.  Banks  v.  Mayor,  7  Wall.  16;  S.  C.  37  N.  Y.  9;  State  v.  Haight,  34 
N.  J.  128;  contra,  People  v.  Gardiner,  48  Barb.  608. 

There  is  no  distinction  between  certificates  of  indebtedness  issued  for 
borrowed  money  and  certificates  of  indebtedness  issued  directly  to  cred- 
itors in  payment  of  their  demands.  Banks  v.  Mayor,  7  Wall.  16;  S.  C.  37 
N.  Y.  9. 

The  money  of  the  Federal  Government  employed  within  the  limits  of  a 
State  as  tax  or  revenue,  and  devoted  in  that  character  to  its  appropriate 
purposes,  is  exempt  from  taxation  by  the  State ;  but  if  it  is  diverted  from 
those  purposes,  and  associated  with  the  money  of  others  in  gainful  trans- 
actions, it  loses  its  sanctity,  ceases  to  be  tax  or  revenue,  and  becomes 
money,  and  in  that  character  may  be  taxed  by  the  State  in  which  it  is  so 
employed,  like  that  with  which  it  is  associated.  Comm.  v.  Morrison,  2  A. 
K.  Marsh.  75. 

A  State  can  not  tax  the  property  which  constitutes  the  capital  of  a  cor- 
poration when  the  capital  is  invested  in  stock  or  bonds  of  the  United  States. 
Bank  v.  Commissioners,  2  Black,  620;  s.  C.  23  N.  Y.  192;  32  Barb.  509; 
Whitney  v.  Madison,  23  Ind  331 ;  International  Assurance  Society  v.  Com- 


STATE    TAXES.  325 

missioners,  28  Barb.  318;    Mechanics'  Bank  v.  Bridges,  30  N.  J.  112;    St. 
Louis  B.  £  S.  Association  z/.  Lightner,  42  Mo.  421. 

A  State  tax  on  a  corporation  upon  a  valuation  equal  to  its  capital  is 
void  when  that  capital  -is  invested  in  stock  or  bonds  of  the  United  States. 
Bank  Tax  Case,  2  Wall.  200.  ' 

A  State  may  tax  the  shares  held  by  an  individual  in  a  bank,  although 
its  capital  is  invested  in  bonds  of  the  United  States.  Wright  v  Stilz,  27 
Ind.  338;  People  v.  Commissioners,  35  N.  Y.  423  ;  S.  C.  4  Wall.  244;  St. 
Louis  B.  &  S.  Association  V.  Lightner,  47  Mo.  393 ;  contra,  Whitney  v. 
Madison,  23  Ind.  331. 

If  a  savings  bank  has  no  capital  stock  or  stockholders,  a  State  may  levy 
a  tax  of  a  certain  per  cent,  on  its  deposits,  although  the  deposits  are  invested 
in  the  bonds  of  the  United  States,  for  the  tax  is  a  tax  on  the  franchise. 
Society  v.  Coite,  6  Wall.  594;  S.  C.  32  Conn.  173;  Provident  Institution  v. 
Massachusetts,  6  Wall.  611 ;  S.  C.  94  Mass.  312. 

If  a  State  tax  on  the  capital  stock  of  a  corporation,  in  excess  of  the 
value  of  its  real  estate  and  machinery,  is  a  tax  on  the  franchise,  it  is 
valid,  although  a  part  of  the  capital  is  invested  in  bonds  of  the  United 
States.  Hamilton  Company  v.  Massachusetts,  6  Wall.  632  ;  S.  C.  94  Mass. 
298. 

A  State  tax  upon  the  franchise  of  a  corporation  to  an  amount  not  ex- 
ceeding the  surplus  earned  and  in  its  possession  is  valid,  although  the  sur- 
plus is  invested  in  bonds  of  the  United  States.  Monroe  Savings  Bank  v. 
Rochester,  37  N.  Y.  365. 

A  collateral  inheritance  tax  imposed  by  a  State  applies  to  that  part  of 
the  estate  which  consists  of  bonds  of  the  United  States,  for  the  tax  is  on 
the  estate  and  not  on  the  bonds.  Strode  v.  Comm.  52  Penn.  181. 

If  the  statute  creating  a  national  bank  permits  a  State  to  tax  the  shares 
held  by  an  individual,  the  tax  may  be  levied,  although  its  capital  is  invested 
in  bonds  or  stocks  of  the  United  States.  Van  Allen  v.  Assessors,  3  Wall. 
573  ;  S.  C.  33  N.  Y.  161 ;  43  Barb.  550  ;  People  v.  Commissioners,  4  Wall. 
244;  S.  C.  35  N.  Y.  423;  National  Bank  v.  Comm.  9  Wall.  353;  s.  C.  4 
Bush,  98;  State  v.  Haight,  31  N.  J.  399;  First  Nat'l  Bank  v.  Douglas,  3 
Dillon,  330  ;  People  v.  Assessors,  44  Barb.  148;  Wright  v.  Stilz,  27  Ind. 
338;  Hubbard  v.  Supervisors,  23  Iowa,  130;  contra,  State  v.  Hart,  31  N. 
J.  434- 

A  State  has  no  right  to  tax  the  means  employed  by  the  Government  for     i 
the  execution  of  its  powers.     M'Culloch  v.  State,  4  Wheat.  316;  Banks  v. 
Mayor,  7  Wall.  16;  s.  C.  37  N.  Y.  9. 

A  State  can   not  tax  a  national  bank.     M'Culloch  v.  State,  4  Wheat. 


326  CONSTITUTION    OF    THE    UNITED    STATES. 

316  ;  Osborne  v.  Bank,  9  Wheat.  738;  Pittsburgh  v.  Nat'l  Bank,  55  Penn. 
45  ;  Collins  v.  Chicago,  4  Biss.  472  ;  contra,  Comm.  -v.  Morrison,  2  A.  K. 
Marsh.  73. 

A  State  can  not  tax  the  notes  of  a  national  bank.  M'Culloch  v.  State, 
4  Wheat.  316;  Home  v.  Green,  52  Miss.  452  ;  contra,  Montgomery  v. 
Elston,  32  Ind.  27. 

A  tax  upon  the  operations  of  a  national  bank  is  a  tax  on  the  operation 
of  an  instrument  employed  by  the  Federal  Government  to  carry  its  powers 
into  execution,  and  is  unconstitutional.  M'Culloch  v.  State,  4  Wheat.  316; 
Pittsburgh  v.  Nat'l  Bank,  55  Penn.  45;  contra,  Comm.  v.  Morrison,  2  A. 
K.  Marsh.  75. 

The  State  may  tax  the  dividends  declared  to  an  individual  holder  of 
stock  in  a  national  bank.  State  v.  Collector,  2  Bailey,  654. 

To  tax  the  faculties,  trade  or  occupation  of  a  national  bank  is  to  tax 
the  bank  itself.  To  destroy  or  preserve  the  one  is  to  destroy  or  preserve 
the  other.  If  the  trade  of  the  bank  is  essential  to  its  character  as  a  ma- 
chine for  the  fiscal  operations  of  the  Government,  that  trade  must  be  as 
exempt  from  State  control  as  the  actual  conveyance  of  the  public  money. 
Osborn  v.  Bank,  9  Wheat.  738. 

A  State  can  not  tax  a  national  bank  for  the  privilege  of  transacting 
business  in  the  State.  Nat'l  Bank  v.  Mayor,  8  Heisk.  814. 

A  State  may  tax  the  shares  of  stock  held  by  an  individual  in  a  national 
bank.  State  v.  Haight,  31  N.  J.  399;  State  v.  Hart,  31  N.  J.  434;  Stetson 
v.  Bangor,  56  Me.  274;  Bulow  v.  Charleston,  I  N.  &  M.  527  ;  People  v. 
Bradley,  39  111.  130;  City  v.  Churchill,  31  N.  Y.  161  ;  S.  C.  43  Barb.  550. 

The  shares  held  by  an  individual  in  a  national  bank,  are  not  subject  to 
taxation  by  a  State,  except  by  the  permission  of  Congress.  People  v.  As- 
sessors, 44  Barb.  148. 

Congress  may  permit  the  States  to  tax  the  national  banks.  Van  Allen 
v.  Assessors,  3  Wall.  573;  S.  C.  33  N.  Y.  161 ;  43  Barb.  550;  State  v. 
Haight,  31  N.  J  399;  Fraze'r  v.  Seibern,  16  Ohio  St.  614;  Mmtzer  v. 
Montgomery,  54  Penn.  139;  Austin  v.  Boston,  96  Mass.  359. 

A  State  may  tax  or  prohibit  a  business  which  is  taxed  by  Congress,  for 
the  power  of  taxation  is  concurrent.  Pervear  v.  Commonwealth,  5  Wall. 
475- 

A  State  tax  on  every  passenger  who  leaves  the  State,  or  passes  through 
it,  is  vqid.  Crandall  v.  State,  6  Wall.  35;  S.  C.  I  Nev.  294. 

The  property  of  a  private  corporation  created  by  Congress  for  individual 
trade  and  profit,  and  not  for  public  and  national  purposes,  may  be  taxed 


SECESSION.  327 

» 

by  a  State.  Union  Pacific  R.  R.  Co.  v.  Lincoln  County,  i  Dillon,  314; 
Railroad  Co.  v.  Peniston,  18  Wall.  5;  Huntington  v.  Central  Pac.  R.  R.  Co. 
2  Saw.  503. 

The  real  estate  or  other  property  of  a  corporation  not  organized  under 
an  act  of  Congress,  is  not,  in  the  absence  of  express  legislation  to  that 
-effect,  exempt  from  State  taxation,  because  of  the  employment  of  the  cor- 
poration in  the  services  of  the  Government.  Thomson  v.  Pacific  Railroad, 
9  Wall.  579. 

Cong'ress  may  leave  the  States  free  to  tax  .the  shares  of  national  banks 
in  the  hands  of  the  shareholder.  Van  Allen  v.  The  Assessors,  3  Wall. 
573;  S.  C.  33  N.  Y.  161 ;  43  Barb.  550;  City  v.  Churchill,  33  N.  Y.  161  ; 
S.  C  43  Barb.  550;  Peoples.  Barton,  44  Barb.  148;  People  v.  Commis- 
sioners, 4  Wall.  244;  s.  c.  35  N.  Y.  423. 

The  implied  inhibition  is  the  same,  whether  the  corporation  whose 
property  is  taxed  was  created  by  Congress  or  by  a  State  legislature.  Rail- 
road Co.  v.  Peniston,  18  Wall.  5. 

If  the  capital  of  a  corporation  is  converted  into  Government  securities 
for  a  few  days,  for  the  express  purpose  of  defeating  any  imposition  of  taxes, 
such  investment  is  colorable  and  fraudulent,  and  its  capital  remains  taxable 
to  the  same  extent  and  in  the  same  manner  as  if  such  conversion  had 
never  taken  place.  Holly  Springs  S.  &  I.  Co.  v.  Marshall  Co.  52  Miss. 
281. 

A  national  bank  is  subject  to  State  legislation,  except  where  such  legis- 
lation is  in  conflict  with  some  act  of  Congress,  or  tends  to  impair  or  destroy 
the  utility  of  the  bank  as  an  agent  or  instrumentality  of  the  United  States, 
or  interferes  with  the  purposes  of  its  creation.  Waite  v.  Dowley,  9  C.  L. 

N.  263. 

A  State  law  requiring  a  national  bank  to  pay  the  tax  on  the  shares  of 
its  stockholders,  is  valid.  National  Bank  v.  Comm.  9  Wall.  353;  s.  C.  4 
Bush,  98 ;  contra,  Markoe  v.  Hartranft,  15  A.  L.  Reg.  487. 

A  State  law  which  requires  the  cashier  of  a  national  bank  to  transmit 
to  the  clerk  of  the  town  in  which  each  shareholder  resides,  a  list  of  such 
shareholders  and  the  number  of  shaies  held  by  each,  is  valid.  Waite  v. 
Dowley,  9  C.  L.  N.  263. 

Secession. 

A  State,  in  the  ordinary  sense  of  the  Constitution,  is  a  political  commu- 
nity of  free  citizens,  occupying  a  territory  of  defined  boundaries,  and  or- 
ganized under  a  government  sanctioned  and  limited  by  a  written  constitu- 
tion, and  established  by  the  consent  of  the  governed.  Texas  v.  White,  7 
Wall.  700. 


328  CONSTITUTION    OF    THE    UNITED    STATES. 

The  union  of  the  States  never  was  a  purely  artificial  and  arbitrary  rela- 
tion. It  began  among  the  colonies,  and  grew  out  of  common  origin,, 
mutual  sympathies,  kindred  principles,  similar  interests  and  geographical 
relations.  It  was  confirmed  and  strengthened  by  the  necessities  of  war, 
and  received  definite  form  and  character  and  sarietion  from  the  articles  of 
confederation.  By  these  the  Union  was  solemnly  declared  to  "  be  perpet- 
ual." When  these  articles  were  found  to  be  inadequate  to  the  exigencies 
of  the  country,  the  Constitution  was  ordained  "to  form  -a  more  perfect 
Union."  It  is  difficult  to  convey  the  idea  of  indissoluble  unity  more  clearly 
than  by  these  words.  Texas  v.  White,  7  Wall.  700  ;  Chancely  z>.  Bailey, 
37  Geo.  532. 

The  preservation  of  the  States,  and  the  maintenance  of  their  govern- 
ments, are  as  much  within  the  design  and  care  of  the  Constitution  as  the 
preservation  of  the  Union  and  the  maintenance  of  the  National  Govern- 
ment. The  Constitution,  in  all  its  provisions,  looks  to  an  indestructible 
Union  composed  of  indestructible  States.  Texas  v.  White,  7  Wall.  700. 

A  constitution  is  framed  for  ages  to  come,  and  is  designed  to  approach 
immortality  as  nearly  as  human  institutions  can  approach  it.  Its  course 
can  not  always  be  tranquil.  It  is  exposed  to  storms  and  tempests,  and  its 
framers  must  be  unwise  statesmen  if  they  have  not  provided  it,  as  far  as  its. 
nature  will  permit,  with  the  means  of  self-preservation  from  the  perils  it 
may  be  destined  to  encounter.  No  government  ought  to  be  so  defective 
in  its  organization  as  not  to  contain  within  itself  the  means  to  secure  the 
execution  of  its  own  laws  against  other  dangers  than  those  which  occur 
every  day.  Cohens  v.  Virginia,  6  Wheat.  264. 

The  United  States  form,  for  many  and  for  most  important  purposes,  a 
single  nation.  In  war  we  are  one  people.  In  making  peace  we  are  one 
people.  In  all  commercial  regulations  we  are  one  and  the  same  people. 
In  many  other  respects  the  American  people  are  one,  and  the  government 
which  is  alone  capable  of  controlling  and  managing  their  interests  in  ail 
these  respects,  is  the  government  of  the  Union.  It  is  their  government,, 
and  in  that  character  they  have  no  other.  America  has  chosen  to  be,  in 
many  respects  and  to  many  purposes,  a  nation,  and  for  all  these  purposes 
her  government  is  complete;  to  all  these  objects  it  is  competent.  Cohens- 
v.  Virginia,  6  Wheat.  264. 

The  people  have  declared  that  in  the  exercise  of  all  powers  given  for 
national  objects,  the  General  Government  is  supreme.  It  can,  in  effecting 
these  objects,  legitimately  control  all  individuals  or  governments  within  the 
American  territory.  The  Constitution  and  laws  of  a  State,  so  far  as  they 
are  repugnant  to  the  Constitution  and  laws  of  the  United  States,  are  ab- 
solutely void.  These  States  are  constituent  parts  of  the  United  States. 
They  are  members  of  one  great  empire — for  some  purposes  sovereign,  for 
some  purposes  subordinate.  Cohens  v.  Virginia,  6  Wheat.  264. 


SECESSION.  329 

The  Constitution  was  designed  to  operate  upon  States  in  their  corporate 
capacities.  It  is  crowded  with  provisions  which  restrain  or  annul  the  sov- 
ereignty of  the  States  in  some  of  the  highest  branches  of  their  prerogatives. 
The  tenth  section  of  the  first  article  contains  a  long  list  of  prohibitions  and 
disabilities  imposed  upon  States.  When  such  essential  portions  of  State 
sovereignty  are  taken  away  or  prohibited  to  be  exercised,  it  can  not  be 
correctly  asserted  that  the  Constitution  does  not  act  upon  the  States. 
Martin  v.  Hunter,  i  Wheat.  304;  s.  C.  4  Munf.  i. 

The  powers  of  sovereignty  are  divided  between  the  Federal  Govern- 
ment and  the  governments  of  the  States.  They  are  each  sovereign  with 
respect  to  the  objects  committed  to  it,  and  neither  sovereign  with  respect 
to  the  objects  committed  to  the  other.  McCulloch  v.  State,  4  Wheat.  316; 
Comm.  v.  Morrison,  2  A.  K.  Marsh.  75  ;  U.  S.  v.  Cruikshank,  92  U.  S. 
542  ;  S.  C.  i  Woods,  308. 

The  Sovereignty  of  a  State  does  not  reside  in  the  persons  who  fill  the 
different  departments  of  its  government,  but  in  the  people  from  whom  the 
government  emanated,  and  who  may  change  it  at  their  discretion.  Sov- 
ereignty abides  with  the  constituency,  and  not  with  the  agent.  Spooner  v. 
McConnell,  3  McLean,  337. 

Allegiance  is  the  duty  which  the  citizen  or  subject  owes  to  the  sovereign. 
Allegiance  is  due  to  both  the  Federal  and  the  State  governments,  the  two 
constituting,  in  a  legal  point  of  view,  one  government  in  each  State,  so 
long  as  they  keep  within  their  respective  constitutional  limits.  State  v. 
Hunt,  2  Hill  (S.  C.)  i  ;  Hawkins  v.  Filkins,  24  Ark.  286;  U.  S.  v.  Cruik- 
shank, 92  U.  S.  542 ;  S.  C.  i  Woods,  308. 

The  people  made  the  Constitution,  and  the  people  can  unmake  it.  It 
is  the  creature  of  their  will,  and  lives  only  by  their  will.  But  this  supreme 
and  irresistible  power  to  make  or  unmake  resides  only  in  the  whole  body 
of  the  people,  not  in  any  subdivision  of  them.  The  attempt  of  any'of  the 
parts  to  exercise  it  is  usurpation,  and  ought  to  be  repelled  by  those  to 
whom  the  people  have  delegated  their  power  of  repelling  it.  Cohens  z/, 
Virginia,  6  Wheat.  264. 

When  a  State  becomes  one  of  the  United  States,  she  enters  into  an  in- 
dissoluble relation.  The  act  which  consummates  her  admission  into  the 
Union  is  something  more  than  a  compact ;  it  is  the  incorporation  of  a  new 
member  into  the  political  body.  It  is  final.  The  union  is  as  complete  as 
perpetual,  and  as  indissoluble  as  the  union  between  the  original  States. 
Texas  v.  White,  7  Wall.  700. 

A  citizen  can  not  withdraw  his  allegiance  without  the  consent  of  the 
Government,  express  or  implied,  and  the  addition  of  a  number  of  others 
similarly  circumstanced  can  not  confer  what  none  possess.  A  State  can 
not  release  its  citizens  from  that  allegiance,  since  the  State  itself  is  but  a. 


33O  CONSTITUTION    OF    THE    UNITED    STATES. 

fractional  part  of  a  magnificent  whole,  and  in  its  collective  capacity  is  only 
the  aggregation  of  its  individual  citizens,  all  of  whom  are  alike  incapable 
of  effecting  their  own  release,  whether  taken  individually  or  collectively. 
Hence  a  State  can  not  secede  from  the  Union.  Hood  v.  Maxwell,  i  W. 
Va.  219. 

The  Constitution  expressly  negatives  the  legal  right  of  a  State  to  secede, 
for  a  sovereign  State  may  irrevocably  bind  itself  by  a  voluntary  compact. 
Chancely  v.  Bailey,  37  Geo.  532;  Central  R.  R.  Co.  v.  Ward,  37  Geo.  515; 
Sequestration  Cases,  30  Tex.  688;  White  v.  Hart,  13  Wall.  646 ;  S.  C.  39 
Geo.  306. 

The  passage  of  an  ordinance  of  secession  by  a  State  convention  does 
not  suspend  or  destroy  the  existence  of  the  State  government,  but  it  con- 
tinues to  exist  de  jure,  and  its  acts  are  valid  and  binding  as  though  no  at- 
tempt were  made  to  secede.  Hawkins  V.  Filkins,  24  Ark.  286  ;  White  v. 
Cannon,  6  Wall.  443  ;  State  v.  Sears,  Phil.  146  ;  Harlan  v.  State,  41  Miss. 
566. 

An  ordinance  of  secession  is  absolutely  null.  It  is  utterly  without 
operation  in  law.  After  the  adoption  of  such  ordinance,  the  obligations  of 
the  State  as  a  member  of  the  Union,  and  of  every  citizen  of  the  State  as 
a  citizen  of  the  United  States,  remain  perfect  and  unimpaired.  The  State 
does  not  cease  to  be  a  State,  nor  her  citizens  to  be  citizens  of  the  Union. 
Texas  v.  White,  7  Wall.  700;  U.  S.  v.  Cathcart,  I  Bond,  586;  White  v. 
Hart,  13  Wall.  646;  S.  C.  39  Geo.  306;  U.  S.  v.  Morrison,  Chase,  521. 

The  constitutional  duties  and  obligations  of  a  State  are  not  affected  by 
its  rebellion,  but  remain  the  same.  Homestead  Cases,  23  Gratt.  266; 
White  v.  Hart,  13  Wall.  646  ;  S.  C.  39  Geo.  306. 

A  rebellious  State  is  bound  by  the  Constitution,  and  all  acts  in  violation 
of  it  are  void.  Sequestration  Cases,  30  Tex.  688. 

A  government  of  a  rebellious  State  is  not  a  de  facto  government,  for  a 
State  has  no  existence  outside  of  and  independent  of  the  Constitution. 
Penn  v.  Tollison,  26  Ark.  545  ;  Thompson  v.  Mankin,  26  Ark.  586  ; 
Thomas  v.  Taylor,  42  Miss.  651. 

Acts  in  furtherance  or  support  of  rebellion  against  the  United  States, 
-or  intended  to  defeat  the  just  rights  of  citizens,  must  in  general  be  regard- 
ed as  invalid  and  void.  Texas  v.  White,  7  Wall.  700  ;  Hatch  v.  Burroughs, 
I  Woods,  439. 

Acts  necessary  to  peace  and  good  order  among  citizens,  which  would 
be  valid  if  emanating  from  a  lawful  government,  must  be  regarded  in  gen- 
eral as  valid  when  proceeding  from  an  actual,  though  unlawful  government. 
Texas  v.  White,  7  Wall.  700  ;  Sequestration  Cases,  30  Tex.  688 ;  Chappell 
-a/.  Williamson,  49  Ala.  153 ;  Cook  V.  Oliver,  I  Woods,  437. 


SECESSION.  331 

The  Confederate  Government  had  no  authority  to  confiscate  and  order 
a  sale  of  the  property  of  citizens  of  the  United  States,  on  the  ground  that 
they  were  alien  enemies.  Central  R.  R.  Co.  z/.  Ward,  37  Geo.  515  ;  Kep- 
pel  v.  Petersburg  R.  R.  Co.  Chase,  167  ;  Perdicaris  v.  Charleston  Gas- 
light Co.  Chase,  435. 

An  act  to  sequester  debts  due  to  loyal  citizens  is  void,  and  the  payment 
to  the  Confederate  Government  does  not  release  the  debtors.  Sequestra- 
tion Cases,  30  Tex.  688  ;  Vance  v.  Burtis,  39  Tex.  88  ;  Knox  v.  Lee,  12 
Wall.  457;  Shortridge  v.  Macon,  Chase,  136. 

•  An  obligation  incurred  by  a  public  corporation  in  aid  of  a  rebellion  can 
not  be  enforced  after  the  rebellion  has  been  suppressed.  Bibb  v.  Commis- 
sioners, 44  Ala.  119.  , 

Notes  of  a  municipal  corporation  issued  for  the  purpose  of  aiding  a  re- 
bellion against  the  United  States,  are  void,  and  can  not  be  enforced.  Evans 
*v.  Richmond,  Chase,  551. 

A  statute  which  attempts  to  force  the  circulation  of  the  bonds  and 
treasury  notes  of  the  Confederate  States,  for  the  purpose  of  aiding  the 
prosecution  of  the  war  of  rebellion,  is  void.  Ray  z>.  Thompson,  43  Ala. 
434 ;  Irvine  v.  Armstead,  46  Ala.  363;  Martin  v.  Hewitt,  44  Ala.  418. 

Treasury  notes  issued  by  a  State  for  the  purpose  of  raisingf  means  to 
prosecute  a  rebellion  against  the  United  States,  are  void.  Thomas  v.  Tay- 
lor, 42  Miss.  651. 

An  act  repealing  a  statute  requiring  the  indorsement  of  the  governor 
as  a  prerequisite  to  the  valid  transfer  of  bonds  belonging  to  it,  passed  by 
the  legislature  when  the  State  is  in  rebellion  against  the  United  States,  is  a 
nullity  as  to  bonds  issued  without  such  indorsement,  and  for  the  purpose 
of  aiding  the  rebellion.  Texas  v.  White,  7  Wall.  700 ;  Texas  v.  Harden- 
berg,  10  Wall.  68. 

Whether  the  alienation  of  bonds  belonging  to  a  State  by  a  rebellious 
government  divests  the  title  of  the  State,  depends  on  other  circumstances 
than  the  quality  of  the  government.  The  validity  of  the  alienation  depends 
on  the  object  and  purpose  of  it ;  if  that  was  just  and  laudable  in  itself,  the 
alienation  is  valid.  Huntington  v.  Texas,  16  Wall.  402. 

A  payment  to  the  officers  of  an  insurrectionary  State  government  of  a 
debt  due  by  a  corporation  to  a  State,  for  the  purpose  of  enabling  them  to 
prosecute  the  rebellion,  is  void.  Miss.  C.  R.  R.  Co.  v.  State,  46  Miss.  1 57. 

The  Confederate  Government  could  not,  by  any  statute  or  order  of  one 
of  its  departments,  divest  any  right  or  property  of  the  United  States.  U.  S. 
v.  Kechler,  9  Wall.  83. 

The  Confederate  States  was  an  unlawful  assemblage,  without  corporate 


332  CONSTITUTION    OF    THE    UNITED    STATES. 

power  to  take,  hold  or  convey  a  valid  title  to  property,  real  or  personal. 
Sprott  v.  U.  S.  8  Ct.  Cl.  499;  s.  c.  20  Wall.  469- 

An  investment  of  the  funds  belonging  to  an  estate  in  Confederate  bonds, 
by  an  executor,  is  illegal,  although  it  was  made  under  a  law  of  the  rebellious 
State,  and  was  approved  by  the  probate  court.  Horn  v.  Lockhart,  17 
Wall.  570;  Head  v.  Starke,  Chase,  312;  Houston  v.  Deloach,  43  Ala.  364; 
Powell  v.  Boon,  43  Ala.  469  ;  Hall  v.  Hall,  43  Ala.  488. 

The  State  is  not  liable  for  sendees  rendered  by  an  officer  to  a  rebellious 
government  established  over  it.  Buck  v.  Vasser,  47  Miss.  551. 

A  judge  elected  by  a  rebellious  State  can  not  claim  compensation  for 
his  services  from  a  lawful  government  subsequently  organized.  Chisholm 
v.  Coleman,  43  Ala.  204. 

When  a  rebellious  State  is  conquered  the  officers  of  the  State  can  no> 
longer  exercise  the  functions  of  their  respective  offices.  Cooke  v  Cooke^ 
Phillips,  583. 

When  a  rebellious  State  government  is  overthrown,  the  civil  author- 
ities do  not  necessarily  cease  at  once  to  exist,  but  continue  in  being 
charged  with  the  duty  of  maintaining  order  until  superseded  by  the  Gov- 
ernment. Woodson  v.  Fleck,  Chase,  305. 

The  statutes  of  a  rebellious  State  intended  solely  to  promote  the  good 
order  and  well  being  of  society  will  be  enforced.  Wallace  v.  State,  33 
Tex.  445  ;  Hill  v.  Boyland,  40  Miss.  618  ;  Buchanan  v.  Smith,  43  Miss.  90. 

The  statutes  of  a  rebellious  State  which  have  been  adopted  by  a  gov- 
ernment lawfully  reorganized,  will  be  deemed  valid.  Reynolds  v.  Taylor,. 
43  Ala.  420. 

A  charter  of  incorporation  granted  by  the  government  of  a  rebellious 
State  is  valid.  U.  S.  v.  Home  Ins.  Co.  8  Ct.  Cl.  449  ;  S.  C  22  Wall.  99. 

A  treasury  note  issued  by  a  rebellious  State  in  aid  of  the  rebellion  is  not 
binding  on  a  lawful  government  subsequently  organized.  Thomas  v.  Tay- 
lor, 42  Miss.  651  ;  Rand  v.  State,  65  N.  C.  194  ;  Leak  v.  Commissioners,. 
64  N.  C.  132. 

A  sale  by  a  tax  collector  under  the  Confederate  Government  passed  a 
valid  title  to  the  property  of  a  citizen  of  the  Confederate  States.  Cassell 

v.  Backrack,  42  Miss.  56. 

\ 

A  contract  which  contains  a  stipulation  for  payment  in  Confederate 
notes  may  be  enforced  after  the  restoration  of  peace  to  the  extent  of  its 
just  obligation.  Thorington  v.  Smith,  8  Wall.  I ;  Herbert  v.  Easton,  43 
Ala.  547  ;  Jordan  v.  Cobb,  47  Ala.  132  ;  Mathews  v.  Rucker,  41  Tex.  636; 
contra,  Latham  -v.  Clarke,  25  Ark.  574;  Reavis  v.  Blackshear,  30  Tex. 
753 ;  Shepard  v.  Taylor,  35  Tex.  774;  Prigeon  v.  Smith,  31  Tex.  171  ;  Lob- 


SECESSION.  333 

dell  v.    Fowler1,  33  Tex.   346 ;  Brown  v.   Read,  33  Tex.   629 ;  McGar  v. 
Nixon,  36  Tex.  289. 

Confederate  notes  were  a  valid  consideration  for  a  contract  between 
•citizens  of  the  Confederate  States.  Rocles  v.  Patillo,  5  Bush,  271  ;  Martin 
*v.  Horton,  I  Bush,  629;  Rivers  v.  Moss,  6  Bush,  600 ;  Naff  v.  Crawford,  I 
Heisk.  in  ;  Miller?/.  Gould,  38  Geo.  465;  Sherfy  V.  Argenbright,  i  Heisk. 
1 28  ;  Taylor  v.  Turley,  33  Md.  500  ;  Rodgers  v.  Bass,  46  Tex.  505  ;  Del- 
mas  v.  Ins.  Co.  14  Wall.  66 1  ;  Forcheimer  v.  Holly,  14  Fla.  239;  Green?/. 
Sizer,  40  Miss.  530;  contra,  Bailey  •z/.  Milner,  I  Abb.  C.  C.  261  ;  Goodman 
•57.  McGehee,  31  Tex.  252;  Wright  v.  Overall,  2  Cold.  336;  Thornburg  v. 
Harris,  3  Cold.  157  ;  Hale  v.  Sharp,  4  Cold.  275  ;  Fain  v.  Headeritk,  4 
Cold.  327;  Hale  v.  Huston,  44  Ala.  134;  Lawson  v.  Miller,  44  Ala.  616; 
Robertson  v.  Shores,  7  Cold.  164 ;  Fox  v.  Woods,  34  Tex.  220;  Wilson  v. 
Bozeman,  48  Ala.  71  ;  Dittmar  ft.  Myers,  39  Tex.  295. 

An  administrator,  executor  or  other  person  suing  in  a  fiduciary  capacity 
may  maintain  an  action  on  a  contract  payable  in  Confederate  currency. 
Shearon  v.  Henderson,  38  Tex.  245  ;  Thompson  v.  Bohannon,  38  Tex.  241  ; 
Hamilton  v,  Pleasants,  31  Tex.  638  ;  contra,  Smith  v.  Nelson,  34  Tex.  516. 

A  bond  issued  by  a  rebellious  State  convention  does  not  constitute  a 
good  consideration  for  a  contract.  Hanauer  v.  Woodruff,  1 5  Wall.  439. 

The  judicial  proceedings  of  the  courts  in  a  rebellious  State,  so  far  as 
they  do  not  impair  or  tend  to  impair  the  supremacy  of  the  national. author- 
•ity  or  the  just  rights  of  citizens  under  the  Constitution,  are  valid.  Riddle 
v.  Hill,  51  Ala.  224;  Powell  v.  Young,  51  Ala.  518;  Berry  v.  Bellows,  30 
Ark.  198;  Cook  v.  Oliver,  i  Woods,  437;  Tarver  v.  Tankersley,  51  Ala. 
309 ;  Randolph  v.  Baldwin,  41  Ala.  305  ;  Pepin  v.  Lachenmeyer,  45  N.  Y. 
27  ;  Ray  v.  Thompson,  43  Ala.  434  ;  White  v.  Cannon,  5  Wall.  443 ;  Parks 
z/.  Coffey,  52  Ala.  32;  Martin  v.  Hewitt,  44  Ala.  418  ;  Shaw  v.  Lindsay,  46 
Ala.  290;  Hughes  v.  Stinson,  21  La.  Ann.  540;  French  v.  Tumlin,  19  A. 
L.  Reg.  641  ;  contra,  Pcnn  v.  Tollison,  26  Ark.  545  ;  Thompson  v.  Man- 
kin,  26  Ark.  586;  Timms  v.  Grace,  26  Ark.  598;  Martin  v.  Hewitt,  44 
Ala.  418;  Carroll  v.  Boyd,  27  Ark.  183;  Cowser  v.  State,  27  Ark.  444; 
Vinsant  v.  Knox,  27  Ark.  266. 

A  bail  bond  given  for  the  surrender  of  an  accused  person  while  the 
State  was  in  rebellion  may  be  enforced.  Thompson  v.  State,  31  Tex.  166. 

A  court  organized  by  the  Confederate  Government  was  a  nullity,  and 
could  exercise  no  rightful  jurisdiction.  Hickman  z/.  Jones,  9  Wall.  197. 

A  decree  of  a  probate  court  approving  of  an  investment  by  an  executor 
in  Confederate  bonds,  is  a  nullity.  Horn  v.  Lockhart,  17  Wall.  570. 

Crimes  committed  during  the  existence  of  a  rebellion  may  be  punished 
under  the  laws  of  the  State  after  the  restoration  of  peace.  Harlan  -v.  State, 
41  'Miss.  566. 


334  CONSTITUTION    OF    THE    UNITED    STATES. 

Federal  and  State  €JoveraimeiH§  I>i§tiiict. 

The  General  Government  and  the  States,  although  both  exist  within  the 
same  territorial  limits,  are  separate  and  distinct  sovereignties,  acting  sepa- 
rately and  independently  of  each  other  within  their  respective  spheres. 
Collectors.  Day,  11  Wall.  113. 

A  State  court  or  judge  who  is  authorized  by  the  laws  of  the  State,  has 
the  right  to  issue  a  writ  of  habeas  corpus  in  any  case  where  a  party  is  im- 
prisoned within  its  territorial  limits,  provided  it  does  not  appear  when  the 
application  is  made  that  the  person  imprisoned  is  in  custody  under  the  au- 
thority of  the  United  States.  The  court  or  judge  has  a  right  to  inquire  in 
this  mode  of  proceeding  for  what  cause  and  by  what  authority  the  prisoner 
is  confined  within  the  limits  of  the  State  sovereignty.  It  is  the  duty  of  the 
marshal  or  other  person  having  the  custody  of  the  prisoner  to  make  known 
to  the  judge  or  court,  by  a  proper  return,  .the  authority  by  which  he  holds 
him  in  custody.  This  right  to  inquire  by  process  of  habeas  corpus,  and  the 
duty  of  the  officer  to  make  a  return,  grow  necessarily  out  of  the  complex 
character  of  our  Government  and  the  existence  of  two  distinct  and  separate 
sovereignties  within  the  same  territorial  space,  each  of  them  restricted  in 
its  powers,  and  each,  within  its  sphere  of  action  prescribed  by  the  Constitu- 
tion, independent  of  the  other.  Ableman  v.  Booth,  21  How.  506;  S.  C.  3 
Wis.  i ;  Ex  parte  Simeon  Bushnell,  8  Ohio  St.  599. 

After  a  return  is  made  to  a  writ  of  habeas  corpus,  and  the  State  judge 
or  court  are  judicially  apprised  that  the  party  is  in  custody  under  the  au- 
thority of  the  United  States,  they  can  proceed  no  further.  They  then  know 
that  the  prisoner  is  within  the  dominion  and  jurisdiction  of  another  govern- 
ment, and  that  neither  the  writ  of  habeas  corpus,  nor  any  other  process 
issued  under  State  authority,  can  pass  over  the  line  of  division  between  the 
two  sovereignties.  He  is  then  within  the  dominion  and  exclusive  jurisdic- 
tion of  the  United  States.  If  he  has  committed  an  offense  against  their 
laws,  their  tribunals  alone  can  punish  him.  If  he  is  wrongfully  imprisoned, 
their  judicial  tribunals  can  release  him  and  afford  him  redress.  Ableman 
v.  Booth,  21  How.  506;  s.  c.  3  Wis.  i. 

Although  it  is  the  duty  of  the  marshal  or  -other  person  holding  a  pris- 
oner to  make  known,  by  a  proper  return,  the  authority  under  which  he 
detains  him,  it  is  at  the  same  time  imperatively  his  duty  to  obey  the  pro- 
cess of  the  United  States,  to  hold  the  prisoner  in  custody  under  it,  and  to 
refuse  obedience  to  the  mandate  or  process  of  any  other  government. 
Consequently  it  is  his  duty  not  to  take  the  prisoner,  nor  suffer  him  to  be 
taken,  before  a  State  judge  or  court  upon  a  habeas  corpus  issued  under 
State  authority.  No  State  judge  or  court,  after  they  are  judicially  informed 
that  the  party  is  imprisoned  under  the  authority  of  the  United  States,  has 
any  right  to  interfere  with  him,  or  to  require  him  to  be  brought  before 
them.  No  judicial  process,  whatever  form  it  may  assume,  can  have  any 
lawful  authority  outside  of  the  limits  of  the  jurisdiction  of  the  court'  or 


FEDERAL    AND    STATE    GOVERNMENTS    DISTINCT.    335 

judge  by  whom  it  is  issued.  Ableman  v.  Booth,  21  How.  506;  s.  c.  3. 
Wis.  i;  Ex  parte  Le  Bur,  49  Cal.  160;  People  v.  Fiske,  45  Barb.  294; 
State  v.  Gulich,  29  N.  J.  409 ;  Ex  parte  Charles  E.  Hopson,  40  Barb.  34 ; 
Ex  parte  J.  J.  Hill,  5  Nev.  154  ;  Ex  parte  John  D.  Berwick,  25  How.  Pr. 
149  ;  contra,  Lockington's  Case,  Brightly,  269  ;  Olmstead's  Case,  Brightly,. 
9 ;  Ex  parte  H.  H.  Robinson,  6  McLean,  355. 

The  power  of  the  General  Government  and  of  the  State,  although  both 
exist  and  are  exercised  within  the  same  territorial  limits,  are  yet  separate 
and  distinct  sovereignties,  acting  separately  and  independently  of  each 
other  within  their  respective  spheres  ;  and  the  sphere  of  action  of  the  Gen- 
eral Government  is  as  far  beyond  the  reach  of  the  judicial  process  issued 
by  a  State  judge  or  a  State  court,  as  if  the  line  of  division  was  traced 
landmarks  and  monuments  visible  to  the  eye.  Ableman  v.  Booth,  21  How, 
506;  s.  C.  3  Wis.  i. 

A  person  who  is  liable  to  arrest  for  the  non-payment  of  taxes  may  be 
arrested  after  he  has  enlisted  in  the  army.  Webster  v.  Seymour,  8  Vt.  135, 

A  State  court  has  no  jurisdiction  to  issue  an  injunction  restraining  a  reg- 
ister and  receiver  acting  under  the  laws  of  the  United  States  from  selling 
public  lands.  Brewer  v.  Kidd,  23  Mich.  440. 

A  State  court  has  no  jurisdiction  to  inquire  into  the  regularity  of  a  draft 
made  under  the  laws  of  the  United  States,  and  the  legality  of  the  detention 
of  the  drafted  man.  Ex  parte  Jacob  Spangler,  1 1  Mich.  298. 

No  judicial  officer  of  a  State  has  jurisdiction  to  issue  a  writ  of  habeas 
corpus,  or  to  continue  proceedings  under  the  writ  when  issued  for  the  pur- 
pose of  inquiring  into  the  validity  of  the  enlistment  of  a  soldier  into  the 
military  service  of  the  United  States,  and  to  discharge  him  from  such 
service,  when,  in  his  judgment  the  enlistment  has  not  been  made  in  con- 
formity to  the  laws  of  the  United  States.  Tarble's  Case,  13  Wall.  397,- 
Ex  parte  Jacob  Spangler,  n  Mich.  298;  State  v.  Gulich,  29  N.  J.  409; 
Ex  parte  Husted,  i  Johns.  Cas.  136;  Ex  parte  Jeremiah  Ferguson,  9  Johns. 
239;  Ex  parte  Emanuel  Roberts,  2  Hall's  L.  J.  192;  Ex  parte  Wm.  J. 
Jordan,  11  A.  L.  Reg.  749;  Ex  parte  Ferrand..  i  Abb.  C. 'C.  140;  Phelan's 
Case,  9  Abb.  Pr.  286;  contra,  Ex  parte  Carlton,  7  Cow.  471;  State  v. 
Dimish,  12  N.  H.  194;  Comm.  v.  Fox,  7  Penn.  336;  Dabb's  Case,  12  Abb. 
Pr.  113;  Ex  parte  Barrett,  42  Barb.  479. 

The  State  courts  have  concurrent  jurisdiction  with  the  Federal  courts 
in  all  cases  of  illegal  confinement  under  color  of  the  authority  of  the 
United  States,  when  that  confinement  is  not  the  consequence  of  a  suit  or 
prosecution  pending  in  the  Federal  courts  in  which  the  allegation  upon 
which  the  commitment  is  made,  will  be  tried.  Ex  parte  Wm.  Pool,  2  Va. 
Cas.  276;  contra,  State  v.  Plime,  T.  U.  P.  Charlt.  142. 

A  discharge  under  a  State  insolvent  law  does  not  entitle  the  insolvent 


336  CONSTITUTION    OF    THE    UNITED    STATES. 

to  a  release  from  imprisonment  under  an  execution  issued  upon  a  judgment 
fora  debt  due  to  the  United  States.  U.  S.  v.  Wilson,  8  Wheat.  253 ;  Dun- 
can ?/.  Darst,  i  How.  301  ;  Glenn  v.  Humphreys,  4  Wash.  424  ;  Sadlier  -z/. 
Fallen,  2  Curt.  190. 

No  State  can  annul  the  judgment  of  a  Federal  court  or  destroy  the 
rights  acquired  under  it.  U.  S.  v.  Peters,  5  Cranch,  1 1 5  ;  U.  S.  v.  Bright, 
Brightley,  19. 

A  State  court  has  jurisdiction  of  a  proceeding  to  foreclose  a  mortgage, 
although  the  Government  has  purchased  the  land  to  secure  a  debt  due  to 
Itself.  Elliott  v.  Van  Voorst,  3  Wall.  Jr.  299. 

If  property  is  seized  under  process  issued  out  of  a  Federal  court,  it  can 
not  be  taken  from  the  possession  of  the  marshal  under  any  process  issued 
from  a  State  court.  Freeman  v.  How.  24  How.  450. 

A  State  court  has  no  jurisdiction  to  issue  a  writ  of  mandamus  against 
an  officer  of  the  Government  employed  in  disposing  of  the  public  land. 
M'Clung  v.  Silliman,  6  Wheat.  598. 

A  State  court  has  no  jurisdiction  to  enjoin  proceedings  on  a  judgment 
in  a  Federal  court.  M'Kim  v.  Voorhies,  7  Cranch,  279. 

A  State  legislature  can  not  regulate  the  modes  of  proceeding  in  suits  in 
Federal  courts,  or  the  conduct  of  their  officers  in  the  service  of  executions 
issuing  out  of  those  courts.  Wayman  v.  Southard,  10  Wheat.  I ;  Bank  v. 
Halstead,  10  Wheat.  51 ;  Homer  v.  Brown,  16  How.  354;  Beers?/.  Hough- 
ton,  9  Pet.  329. 

The  several  courts  of  the  United  States  are  domestic  courts,  and  their 
respective  seals  prove  themselves  in  the  State  courts.  Adams  v.  Way,  33 
Conn.  419;  Pepoon  v.  Jenkins,  2  Johns.  Cas.  119;  Williams  v.  VVilkes,  14 
Penn.  228  ;  Womack  v.  Dearman,  7  Port.  513. 

Power  of  Courts. 

The  courts  have  the  power  to  declare  an  act  of  the  legislature  uncon- 
stitutional and  void.  Dawson  v.  Shaver,  I  Blackf.  204 ;  Grimball  v.  Ross, 
T.  U.  P.  Charlt.  175  ;  Houston  v.  Moore,  5  Wheat.  I ;  S.  C.  3  S.  &  R.  169; 
Eakin  v.  Raub,  12  S.  &  R.  330  ;  Green  v.  Biddle,  8  Wheat.  I ;  Dausin  v. 
Champlin,  7  Conn.  244;  Baily  v.  Gentry,  I  Mo.  164;  Winter  v.  Jones, 
10  Geo.  190;  Ableman  v.  Booth,  21  How.  506;  S.  C.  3  Wis.  145,  157  ; 
Marbuiy  v.  Madison,  i  Cranch,  137. 

The  question  whether  a  law  be  void  for  its  repugnancy  to  the  Constitu- 
tion, is  at  all  times  a  question  of  much  delicacy,  which  ought  seldom,  if 
ever,  to  be  decided  in  the  affirmative  in  a  doubtful  case.  The  court,  when 
impelled  by  duty  to  render  such  a  judgment,  would  be  unworthy  of  its  sta- 
tion could  it  be  unmindful  of  the  solemn  obligations  which  that  station  im- 


POWER    OF    COURTS.  337 

poses.  But  it  is  not  on  slight  implication  and  vague  conjecture  that  the 
legislature  is  to  be  pronounced  to  have  transcended  its  powers,  and  its  acts 
to  be  considered  as  void.  The  opposition  between  the  Constitution  and 
the  law  should  be  such  that  the  judge  feels  a  clear  and  strong  conviction 
of  their  incompatibility  with  each  other.  Fletcher  v.  Peck,  6  Cranch,  87  ; 
Grimball  v.  Ross,  T.  U.  P.  Charlt.  175 ;  Houston  v.  Moore,  5  Wheat.  I ;  s.  C. 
3  S.  &  R.  169;  Dartmouth  College  v.  Woodward,  4  Wheat.  518  ;  Trustees 
v.  Bradbury,  n  Me.  118;  Charles  River  Bridges.  Warren  Bridge,  24 
Mass.  344;  s.  C.  23  Mass.  376;  11  Pet.  420;  Eakin  v.  Raub,  12  S.  & 
R.  330  ;  Lapsley  z/.  Brashears,  4  Litt.  47  ;  Jones  v.  Crittenden,  I  Car.  L. 
Rep.  385  ;  Strong  v.  State,  i  Blackf.  193  ;  Regents  v.  Williams,  9  G.  &  J. 
.365;  Baugherz/.  Nelson,  9  Gill,  299;  Butler  v.  Pennsylvania,  10  How. 
402  ;  Hartford  Bridge  Co.  v.  Union  Ferry  Co.  29  Conn.  210;  Metropolitan 
Bank  v.  Van  Dyck,  27  N.  Y.  400. 

No  law  will  be  declared  to  be  void,  except  in  a  clear  case.  Calder  v. 
Bull,  3  Ball.  386  ;  S.  C.  2  Root,  350. 

No  court  ought,  unless  the  terms  of  an  act  render  it  unavoidable,  to 
give  a  construction  to  it  which  will  involve  a  violation  of  the  Constitution. 
Parsons  v.  Ballard,  3  Pet.  433 ;  Payne  v.  Baldwin,  n  Miss.  66 1  ;  Bailey  v. 
Railroad  Co.  4  Harring.  389. 

The  presumption  is  in  favor  of  every  legislative  act,  and  the  whole  bur- 
den of  proof  lies  on  him  who  denies  its  constitutionality.  Brown  v.  State, 
12  Wheat.  419;  Hylton  v,  U.  S.  3  Dall.  171 ;  Planters'  Bank  v.  Sharp,  6 
How.  301  ;  s.  C.  12  Miss.  28 ;  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

The  respect  that  is  due  from  one  branch  of  the  Government  to  another 
will  always  lead  the  judiciary  to  decline  to  express  an  opinion  on  the  sub- 
ject of  the  constitutionality  of  a  law  in  a  case  not  requiring  such  a 
decision.  Crandall  v.  State,  10  Conn.  339  ;  Ex  parte  Randolph,  2  Brock. 
447- 

It  is  incumbent  on  those  who  affirm  the  unconstitutionality  of  an  act  of 
Congress  to  show  clearly  that  it  is  in  violation  of  the  provisions  of  the 
Constitution.  It  is  not  sufficient  for  them  that  they  succeed  in  raising  a 
doubt.  Legal  Tender  Cases,  12  Wall.  457. 

Where  there  is  a  reasonable  doubt  as  to  the  unconstitutionality  of  an 
act  of  Congress,  the  law  should  be  sustained.  In  re  Robert  D.  Bogart,  2 
Saw.  396. 

An  act  of  Congress  can  not  be  declared  invalid,  merely  because  the 
court  may  think  its  provisions  harsh  and  unjust.  Legal  Tender  Cases,  12 
Wall.  457. 

If  Congress,  or  any  State  legislature,  shall  pass  a  law  within  the  .general 
.scope  of  their  constitutional  power,  the  court  can  not  pronounce  it  to  be 
22 


338  CONSTITUTION    OF    THE    UNITED    STATES. 

void,  merely  because  it  is,  in  their  judgment,  contrary  to  the  principles  of 
natural  justice.  The  ideas  of  natural  justice  are  regulated  by  no  fixed 
standard.  The  ablest  and  the  purest  men  have  differed  upon  the  subject. 
All  that  the  court  could  properly  say  in  such  an  event  would  be  that  the 
legislature,  possessed  of  an  equal  right  of  opinion,  had  passed  an  act 
which,  in  the  opinion  of  the  court,  was  inconsistent  with  the  abstract  prin- 
ciples of  natural  justice.  Calder  v.  Bull,  3  Dall.  386;  S.  C.  2  Root,  350. 

The  power  to  make  a  law  is  all  that  the  courts  can  judge  of.  They 
have  no  right  to  judge  of  its  expediency.  The  legislative  body  exercises 
its  powers  at  its  own  discretion,  and  is  responsible  only  to  the  people  to 
whom  it  owes  its  existence.  Houston  v.  Moore,  5  Wheat,  i  ;  s.  C.  3  S.  & 
R.  169;  Charles  River  Bridge  v.  Warren  Bridge,  24  Mass.  344;  s.  C.  23, 
Mass.  376 ;  1 1  Pet.  420 ;  Bennett  v.  Boggs,  Bald.  60. 

A  statute  is  judicially  held  to  be  unconstitutional  because  it  is  not  within 
the  scope  of  legislative  authority.  It  may  either  propose  to  accomplish 
some  object  prohibited  by  the  Constitution,  or  to  accomplish  some  lawful 
and  even  laudable  object  by  means  repugnant  to  the  Constitution.  Comm. 
v.  Clapp,  71  Mass.  97. 

The  courts  of  one  State  have  the  right  to  decide  upon  the  validity  and 
constitutionality  of  an  act  of  assembly  of  another  State.  Stoddart  v.  Smith, 
SBinn.  355. 

A  statute  may  be  void  in  part  and  valid  in  part.  If  some  of  the  pro- 
visions of  a  statute  violate  the  Constitution,  while  others  are  consistent  with 
it,  the  latter  will  be  maintained  if  they  can  be  separated  from  and  stand 
without  the  unconstitutional  and  void  parts  of  the  law.  Mobile  R.  R.  Co. 
77.  State,  29  Ala.  573  ;  Kneedler  v.  Lane,  45  Penn.  238  ;  s.  C.  3  Grant,  465  ; 
Comm.  v.  Clapp,  71  Mass.  97. 

If  the  parts  held  respectively  constitutional  and  unconstitutional  are  so 
mutually  connected  with  and  dependent  on  each  other  as  conditions,  con- 
siderations and  compensations  for  each  other  as  to  warrant  a  belief  that  the 
legislature  intended  them  as  a  whole,  and  if  all  could  not  be  carried  inta 
effect  the  legislature  would  not  pass  the  residue  independently,  all  the  pro- 
visions which  are  thus  dependent,  conditional,  or  connected  with  the  uncon- 
stitutional parts,  must  fall  with  them.  State  v.  Perry  Co.  5  Ohio  St.  497. 

When  the  principal  part  of  a  statute  is  void,  the  subordinate  parts  which 
are  adjuncts  of  and  dependent  upon  the  main  theory  are  also  void.  People 
•v.  Commissioner,  9  C.  L.  N.  270. 

The  constitutionality  of  a  law  can  not  be  called  in  question  on  a  sum- 
mary motion.  Brien  z/.  Clay,  i  E.  D.  Smith,  649. 

Although  a  charter  may  contain  one  unconstitutional  feature,  yet  it  can 
not  be  deemed  entirely  void  at  the  instance  of  a  person  who  may  call  it  in 


OFFICERS     OATH.  339 

question  collaterally.     Rar.  &  Del.  R.  R.  Co.  v.  Del.  &  Rar.  Canal  Co.  18 
N.  J.  Eq.  546. 

After  a  statute  has  been  repealed,  the  court  will  not  pass  upon  its 
constitutionality  simply  to  dispose  of  a  question  of  costs.  Burbanks  z/. 
Williams,  Phillips,  37. 

An  unconstitutional  law  affords  no  justification  to  a  State  officer  for  an 
act  injurious  to  an  individual.  Astrom  v.  Hammond,  3  McLean,  107. 

A  purchaser  at  a  sale  under  an  execution  issued  upon  a  judgment  ren- 
dered under  an  unconstitutional  law,  obtains  a  good  title.  Webster  z/. 
Reid, 'Morris,  467  ;  s.  C.  11  How.  437. 

Who  may  object. 

The  debtors  of  a  bank  incorporated  under  the  laws  of  a  State  can  not 
raise  the  objection  that  the  charter  of  the  bank  is  a  violation  of  the  Consti- 
tution. After  having  borrowed  the  paper  of  the  institution,  both  public 
policy  and  common  honesty  require  that  the  borrowers  shall  repay  it.  Sny- 
der  v.  Bank  of  111.  I  111.  122. 

If  parties  having  conflicting  claims  to  a  ferry  enter  into  an  agreement  to 
submit  their  rights  to  the  legislature,  they  can  not  afterwards  object  to  the 
constitutionality  of  the  act  determining  their  rights.  Walker  v.  Tipton,  3 
Dana,  3. 

This  obligation  is  imperative  upon  the  State  judges  in  their  official,  and 
not  merely  in  their  private  capacities.  From  the  very  nature  of  their  ju- 
dicial duties  they  would  be  called  upon  to  pronounce  the  law  applicable  to 
the  case  in  judgment.  They  were  not  to  decide  merely  according  to  the 
laws  or  Constitution  of  the  State,  but  according  to  the  Constitution,  laws 
and  treaties  of  the  United  States,  the  supreme  law  of  the  land.  Martin  v. 
Hunter,  I  Wheat.  304;  S.  C.  4  Munf.  i. 

3.  The  senators  and  representatives  before  men- 
tioned, and  the  members  of  the  several  State  legisla- 
tures, and  all  executive  and  judicial  officers,  both  of  the 
United  States  and  of  the  several  States,  shall  be  bound 
by  oath  or  affirmation,  to  support  this  Constitution  : 
but  no  religious  test  shall  ever  be  required  as  a  qualifica- 
tion to  any  office  or  public  trust  under  the  United  States. 

The  acts  of  the  members  of  the  legislature  are  not  made  void  for  a  fail- 
ure to  take  the  oath  to  support  the  Constitution.  The  provision  is  merely 
directory,  and  the  omission  to  take  the  oath  does  not  affect  the  validity  of 
their  legislation.  Hill  v.  Boyland,  40  Miss.  618  ;  contra,  White  v.  McKee, 
19  La.  Ann.  in  ;  Thomas  v.  Taylor,  42  Miss.  651. 


34°  CONSTITUTION    OF    THE    UNITED    STATES. 


ARTICLE  VII. 

i.  The  ratification  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Consti- 
tution between  the  States  so  ratifying  the  same. 

Done  in  Convention,  by  the  unanimoiis  consent  of  the 
States  present,  the  seventeenth  day  of  September,  in 
the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty-seven,  and  of  the  Independence  of  the 
United  States  of  America  the  twelfth.  In  witness 
whereof,  we  have  hereunto  subscribed  our  names. 

GEORGE  WASHINGTON,  President, 

and  deputy  from  Virginia. 

New  Hampshire. — John  Langdon,  Nicholas  Oil- 
man. 

Massachusetts. — Nathaniel  Gorham,  Rufus  King. 

Connecticut. — William  Samuel  Johnson,  Roger 
Sherman. 

New  York. — Alexander  Hamilton. 

New  Jersey. — William  Livingston,  David  Brearly, 
William  Patterson,  Jonathan  Dayton. 

Pennsylvania. — Benjamin  Franklin,  Thomas  Miflftin, 
Robert  Morris,  George  Clymer,  Thomas  Fitzsimons, 
Jared  Ingersoll,  James  Wilson,  Gouverneur  Morris. 

Delaware. — George  Read,  Gunning  Bedford,  jr., 
John  Dickinson,  Richard  Bassett,  Jacob  Broom. 

Maryland. — James  McHenry,  Daniel  of  St.  Thomas 
Jenifer,  Daniel  Carroll. 

Virginia. — John  Blair,  James  Madison,  jr. 

North  Carolina. — William  Blount,  Richard  Dobbs 
Spaight,  Hugh  Williamson. 

South  Carolina. — John  Rutledge,  Charles  Cotes- 
worth  Pinckney,  Charles  Pinckney,  Pierce  Butler. 

Georgia. — William  Few,  Abraham  Baldwin. 

Attest :  WILLIAM  JACKSON,  Secretary. 


AMENDMENTS  TO  THE  CONSTITUTION. 


[The  following  Amendments  were  proposed  at  the  first  session  of  the  first 
Congress  of  the  United  States,  which  was  begun  and  held  at  the  city  of  New 
York,  on  the  4th  of  March,  1789,  and  were  adopted  by  the  requisite  number  of 
States,  i  Stat.  21.] 

Of  two  constructions,  either  of  which  is  warranted  by  the  words  of  an 
amendment,  that  is  to  be  preferred  which  best  harmonizes  the  amendment 
with  the  general  tenor  and  spirit  of  the  act  so  amended.  Ex  parte  Cassar 
Griffin,  25  Tex.  Supp.  623;  s.  C.  Chase,  364. 

No  limit  can  be  imposed  on  the  people  when  exercising  their  sovereign 
power  in  amending  the  Constitution.  Ex  parte  Caesar  Griffin,  25  Tex. 
Supp.  623 ;  s.  C.  Chase,  364. 

The  Constitution  was  ordained  and  established  by  the  people  of  the 
United  States  for  themselves,  for  their  own  government,  and  not  for  the 
government  of  the  individual  States.  Each  State  established  a  Constitution 
for  itself,  and  in  that  Constitution  provided  such  limitations  and  restrictions 
on  the  powers  of  its  particular  government  as  its  judgment  dictated.  The 
people  of  the  United  States  framed  such  a  government  for  the  United  States 
as  they  supposed  best  adapted  to  their  situation,  and  best  calculated  to  pro- 
mote their  interests.  The  powers  they  conferred  on  this  government  were 
to  be  exercised  by  itself,  and  the  limitations  on  power,  if  expressed  in  gen- 
eral terms,  are  naturally  and  necessarily  applicable  to  the  government 
created  by  the  instrument.  They  are  limitations  of  powers  granted  in  the 
instrument  itself,  not  of  distinct  governments  framed  by  different  persons 
and  for  different  purposes.  Barren  v.  Mayor,  7  Pet.  243. 

The  amendments  contain  no  expression  indicating  an  intention  to  apply 
them  to  the  State  governments,  and  they  can  not  be  so  applied.  Barron  v. 
Mayor,  7  Pet.  243. 

All  the  amendments  adopted  by  Congress  at  its  first  session,  and  after- 
wards sanctioned  by  the  requisite  number  of  States,  were  intended  to  apply 
to  the  General  Government  only,  for  the  purpose  of  limiting  and  restricting 
its  powers,  but  without  any  intention  of  limiting  or  controlling  State  legis- 
lation. Livingston  v.  Mayor,  8  Wend.  85  ;  Murphy  v.  People,  2  Cow.  815  ; 
Jackson  v.  Wood,  2  Cow.  819;  Livingston  v.  Moore,  7  Pet.  469;  Barker  v. 
People,  3  Cow.  686;  Fox  v.  State,  5  How.  410;  Comm.  v.  Hitchings,  71 


342  AMENDMENTS    TO    THE    CONSTITUTION. 

Mass.  482;  Comm.  v.  Pomeroy,  71  Mass.  486;  James  v.  Comm.  12  S.  & 
R.  220;  Bryan  z/.  State,  4  Idwa,  349;  Lincoln  v.  Smith,  27  Vt.  328  ;  Bar- 
ron  v  Mayor,  7  Pet.  243;  Withers  v.  Buckley,  20  How.  84;  S.  C.  29  Miss. 
21 ;  State  z/.  Paul,  5  R.  I.  185 ;  State  v.  Shricker,  29  Mo.  265 ;  North  Mo. 
R.  R.  Co.  v.  Maguire,  49  Mo.  490 ;  S.  C.  20  Wall.  46 ;  Hill  v.  State,  53 
Geo.  472;.  State  v.  Barnett,  3  Kans.  250;  Pervear  v.  Commonwealth,  5 
Wall.  475  ;  Bakers.  Wise,  16  Gratt.  139;  State  v.  Millain,  3  Nev.  407; 
Twitchell  v.  Comm.  7  Wall.  321. 

The  prohibition  in  these  amendments  is  not  confined  to  the  States,  but 
the  words  are  general,  and  extend  to  the  whole  territory  over  which  the  Con- 
stitution gives  Congress  the  power  to  legislate,  including  those  portions  of  it 
remaining  under  territorial  government,  as  well  as  that  covered  by  States.  It 
is  a  total  absence  of  power  everywhere  within  the  dominion  of  the  United 
States,  and  places  the  citizens  of  a  territory,  so  far  as  these  rights  are  con- 
cerned, on  the  same  footing  with  citizens  of  the  States,  and  guards  them 
as  plainly  and  firmly  against  any  inroads  which  the  Government  might 
attempt,  under  the  plea  of  implied  or  incidental  powers.  Dred  Scott  v. 
Sandford,  19  How.  393. 

Congress  can  confer  no  power  on  any  local  government  established  by 
its  authority  to  violate  the  provisions  of  the  Constitution.  Dred  Scott  z/. 
Sandford,  19  How.  393. 

ARTICLE    I. 

i.  Congress  shall  make  no  law  respecting  an  estab- 
lishment of  religion,  or  prohibiting  the  free  exercise 
thereof; -or  abridging  the  freedom  of  speech,  or  of  the 
press ;  or  the  right  of  the  people  peaceably  to  assem- 
ble, and  to  petition  the  Government  for  a  redress  of 
grievances. 

Congress  has  no  power  to  punish  individuals  for  disturbing  assemblies 
of  peaceable  citizens.  That  is  the  prerogative  of  the  several  States.  It 
belongs  to  the  preservation  of  the  public  peace  and  the  fundamental  rights 
of  the  people.  U.  S.  v.  Cruikshank,  92  U.  S.  542  ;  S.  C.  I  Woods,  308. 

ARTICLE   II. 

i.  A  well  regulated  militia  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed. 


SECURITY    OF    PERSONS    AND    PROPERTY.  343 

This  provision  is  restrictive  only  of  the  powers  of  the  Federal  Gov- 
ernment. State  v.  Newsom,  5  Ired.  250;  Andrews  v.  State,  3  Heisk. 
165  ;  Fife  v.  State,  31  Ark.  455. 

This  amendment  has  no  other  effect  than  to  restrict  the  powers  of  the 
National  Government,  leaving  the  people  to  look  for  their  protection  against 
any  violation  by  their  fellow-citizens  of  the  rights  it  recognizes  to  the  several 
States.  U.  S.  v.  Cruikshank,  92  U.  S.  542 ;  s.  C.  I  Woods,  308. 

The  word  "  arms  "  refers  to  the  arms  of  a  militiaman  or  soldier,  and  is 
used  in  its  military  sense.  English  v.  State,  35  Tex.  473. 

The  provision  does  not  prevent  the  passage  of  a  law  to  prevent  the 
carrying  of  concealed  weapons.  State  v.  Buzzard,  4  Ark.  18;  Nunn  v. 
State,  i  Geo.  243  ;  State  v.  Chandler,  5  La.  Ann.  489;  State  v.  Smith,  II 
La.  Ann.  633 ;  State  v.  Jumell,  13  La.  Ann.  399. 

A  statute  prohibiting  the  bearing  of  arms  openly  is  in  conflict  with  the 
Constitution,  and  invalid.  Nunn  v.  State,  I  Geo.  243. 

A  statute  prohibiting  the  carrying  of  dirks,  daggers,  slung  shots,  sword- 
•canes,  brass-knuckles,  and  bowie  knives,  is  valid.  English  v.  State,  35  Tex. 
473- 

A  higher  punishment  may  be  prescribed  for  an  unlawful  assault  with 
one  of  the  dangerous  weapons  which  it  is  lawful  to  carry  than  with  an- 
other. Cockrum  v.  State,  24  Tex.  394. 

ARTICLE    III. 

i.  No  soldier  shall,  in  time  of  peace,  be  quartered 
in  any  house  without  the  consent  of  the  owner,  nor  in 
time  of  war  but  in  a  manner  to  be  prescribed  by  law. 


ARTICLE   IV. 

i.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreason- 
able searches  and  seizures,  shall  not  be  violated,  and 
no  warrants  shall  issue  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

This  amendment  can  not  affect  proceedings  under  the  authority  of  the 
.States.     It  was  not  adopted  with  the  intent  to  restrict  the  powers  of  the 


344  AMENDMENTS    TO    THE    CONSTITUTION. 

\ 

States,  but  to  limit  the  power  of  the  United  States,  and  to  prescribe  fixed 
rules  relative  to  searches  and  seizures  under  the  authority  of  the  National 
Government.  Reed  v.  Rice,  2  J.  J.  Marsh.  44 ;  Smith  v.  State,  i  How.  71 ; 
Weimer  v.  Bunbury,  30  Mich.  201. 

This  amendment  only  protects  those  who  are  parties  to  the  Constitution.   , 
Comm.  v.  Griffith,  19  Mass.  11. 

A  statute  allowing  a  supervisor  of  internal  revenue  to  issue  a  summons- 
for  the  production  of  books  and  papers  is  valid.  Ex  parte  Meador,  i  Abb. 
C.  C.  317;  Ex  parte  Mark  Strouse,  i  Saw.  605  ;  Stanwood  v.  Green,  2 
Abb.  C.  C.  184. 

This  provision  applies  to  criminal  cases  only.  Ex  parte  Meador,  i  Abb. 
C.C.  317- 

This  provision  does  not  prohibit  a  search  or  seizure  made  in  attempting 
to  execute  a  military  order  issued  under  a  law  to  prevent  citizens  from 
evading  a  draft.  Allen  v.  Colby,  45  N.  H.  544. 

A  statute  which  authorizes  the  production  of  books  and  papers  on  a 
proceeding  for  a  forfeiture  under  the  internal  revenue  laws  is  valid.  U.  S* 
v.  Distillery,  8  C.  L.  N.  57. 

A  warrant  of  commitment  which  does  not  state  some  good  cause  cer- 
tain, supported  by  oath,  is  illegal.  Ex  parte  Burford,  3  Cranch,  448. 

Provisions  for  searches  and  seizures  to  aid  in  the  collection  of  revenue 
by  duties,  are  not  repugnant  to  this  clause.  In  the  Matter  of  John  R. 
Platt  et  al.  7  Ben.  261 ;  S.  C.  19  I.  R.  R.  132. 

This  artjcle  has  no  reference  to  civil  proceedings  for  the  recovery  of  debts 
of  which  a  search  warrant  is  not  made  a  part.  The  process  issued  from  the 
treasury  to  enforce  the  payment  of  balances  due  from  accounting  officers  is 
termed  a  warrant  of  distress.  The  name  bestowed  upon  it  can  not  affect  its 
constitutional  validity.  In  substance,  it  is  an  extent  authorizing  a  levy  for 
the  satisfaction  of  a  debt,  and  as  no  other  authority  is  conferred  to  make 
searches  or  seizures  than  is  ordinarily  embraced  in  every  execution  issued 
upon  a  recognizance,  or  a  stipulation  in  the  admiralty,  it  is  not  invalid  be- 
cause it  is  issued  without  the  support  of  an  oath  or  affirmation.  Murray 
v.  Hoboken  Co.  18  How.  272. 

An  order  of  the  war  department  directing  the  arrest  without  warrant 
of  persons  liable  to  draft  is  void.  Ex  parte  Field,  5  Blatch.  63. 

An  executive  officer  can  justify  his  acts  by  showing  a  regular  warrant 
from  a  magistrate  having  jurisdiction  over  the  subject,  without  showing 
that  it  was  founded  on  a  complaint  under  oath.  It  will  not  do  to  require 
of  executive  officers  before  they  shall  be  held  to  obey  precepts  directed  to 


TRIAL    AND    PUNISHMENT.  345 

them,  that  they  shall  have  evidence  of  the  regularity  of  the  proceedings  of 
the  tribunal  which  commands  the  duty.  Such  a  principle  would  put  a 
stop  to  the  execution  of  legal  process,  as  officers  so  situated  would  be  nec- 
essarily obliged  to  judge  for  themselves,  and  would  often  judge  wrong  as 
to  the  lawfulness  of  the  authority  under  which  they  are  required  to  act. 
It  is  a  general  and  known  principle  that  executive  officers  obliged  by 
law  to  serve  legal  writs  and  processes  are  protected  in  the  rightful  dis- 
charge of  their  duty,  if  those  precepts  are  sufficient  in  point  of  form,  and 
issue  from  a  court  or  magistrate  having  jurisdiction  of  the  subject-matter. 
Sanford  v.  Nichols,  13  Mass.  286. 

In  order  to  protect  an  executive  officer,  it  is  necessary  that  the  precept 
under  which  the  officer  acts  in  arresting  the  body  or  seizing  the  goods,  and 
especially  in  entering  a  dwelling  house  by  force,  shall  be  lawful  on  the  face 
of  it.  Sanford  v.  Nichols,  13  Mass.  286. 

In  the  case  of  smuggled  goods  it  may  be  difficult  to  describe  them  with 
minuteness,  and  this  is  not  required.  It  is  not  difficult  to  mention  the  kind  of 
goods  to  be  searched  for,  or  at  least  to  describe  them  as  having  been  taken 
out  of  some  certain  vessel,  so  that  the  officer  who  shall  undertake  such  a 
search,  may  not  conceive  himself  at  liberty  to  rifle  the  house  and  disturb 
the  arrangements  of  the  family  occupying  it.  Sanford  v.  Nichols,  13  Mass. 
286. 

A  direction  to  search  for  goods,  wares  and  merchandise  without  any 
specification  of  their  character,  quality,  number,  weight  or  any  other  cir- 
cumstance tending  to  distinguish  them,  is  not  such  a  particular  description 
as  the*  Constitution  requires.  Sanford  v.  Nichols,  13  Mass.  286. 

A  warrant  directing  a  search  in  the  houses  of  Thomas  Sanford  &  Co. 
will  not  justify  a  search  in  the  house  of  Thomas  Sanford.  .Sanford  v. 
Nichols,  13  Mass.  286. 

ARTICLE  V. 

i.  No  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  (a)  of  a  grand  jury,  except  in  cases  aris- 
ing in  the  land  or  naval  forces,  or  in  the  militia  when 
in  actual  service,  in  time  of  war  or  public  danger  ;  nor 
shall  any  person  be  subject,  for  the  same  offense,  to  be 
twice  put  in  jeopardy  (b)  of  life  or  limb  ;  nor  shall  be 
compelled  in  any  criminal  case  to  be  a  witness  (c) 
against  himself ;  nor  be  deprived  of  life,  liberty,  or 
property,  without  due  process  (</)  of  law  ;  nor  shall 
private  property  be  taken  for  public  use-(^)  without 
just  compensation. 


346  AMENDMENTS    TO    THE    CONSTITUTION. 

This  provision  is  intended  solely  as  a  limitation  on  the  exercise  of  power 
by  the  Government  of  the  United  States,  and  is  not  applicable  to  the  leg- 
islation of  the  States.  Hollister  v.  Union  Co.  9  Conn.  436;  Barkers/- 
People, 3  Cow.  686 ;  Barron  v.  Mayor,  7  Pet.  243 ;  Bonaparte  v.  Camden 
&  Am.  R.  R.  Co.  Bald.  205 ;  Livingston  v.  Mayor,  8  Wend.  85 ;  Murphy 
*z/.  People,  2  Cow.  815;  Jackson  v.  Wood,  2  Cow.  819;  Railroad  Co.  v.  » 
Davis,  2  Dev.  &  Bat.  451 ;  Withers  v.  Buckley,  20  How.  84;  s.  C.  29  Miss. 
21;  Powers  z/.  Dougherty  Co.  23  Geo.  65;  Boyd  v.  Ellis,  II  Iowa,  97  ; 
Concord  Railroad  v.  Greely,  17  N.  H.  47;  State  v.  Jackson,  21  La.  Ann. 
574 ;  Clark  v.  Dick,  I  Dillon,  8  ;  Weimer  v.  Bunbury,  30  Mich.  201 ;  Pres- 
•cott  v.  State,  19  Ohio  St.  184 ;  State  v.  Schumpert,  I  Rich.  N.  S.  85. 

Indictment. 

(a)  A  party  may  be  tried  in  a  State  court  for  an  alleged  crime,  without 
a  previous  indictment  by  a  grand  jury.  State  v.  Keyes,  8  Vt.  57. 

The  several  States  may  dispense  with  any  matter  of  form  or  substance 
which  was  deemed  essential  to  the  validity  of  an  indictment  at  common 
law.  Jane  v.  Comm.  3  Met.  (Ky.)  1 8. 

This  clause  relates  to  times  of  war  as  well  as  peace.  In  re  Nicholas 
Kemp,  16  Wis.  359. 

The  words  "  infamous  crime  "  have  a  fixed  and  settled  meaning.  In  a 
legal  sense,  they  are  descriptive  of  an  offense  that  subjects  a  person  to 
infamous  punishment  or  prevents  his  being  a  witness.  The  fact  that  an 
offense  may  be  or  must  be  punished  by  imprisonment  in  the  penitentiary, 
does  not  necessarily  make  it  in  law  infamous.  U.  S.  v.  Maxwell,  3  £)illon, 
275  ;  s.  C.  21  I.  R.  R.  148;  U.  S.  v.  Sheppard,  I  Abb.  C.  C.  431 ;  U.  S.  v. 
Waller,  i  Saw.  701 ;  U.  S.  v.  Block,  9  C.  L.  N.  234. 

This  provision  does  not  say  that  all  offenses  must  be  prosecuted  with 
the  sanction  of  a  grand  jury,  but  only  that  certain  classes  of  offenses  must 
be.  The  fair  implication  is  that  other  offenses  than  those  falling  within 
the  classes  specifically  described  may  be  prosecuted  otherwise  than  through 
the  intervention  of  a  grand  jury.  And  certainly,  as  respects  offenses  not 
-capital  and  not  infamous,  there  is  no  restriction  upon  Congress  as  to  the 
mode  of  procedure ;  and  as  to  siach  offenses,  it  is  entirely  competent  for 
Congress  to  provide  that  they  shall  be  prosecuted  upon  indictment  or  in- 
formation, or  in  either  mode.  U.  S.  v.  Maxwell,  3  Dillon,  275  ;  S.  C.  21  I. 
R.  R.  148. 

Misdemeanors  can  not,  by  any  construction  or  interpretation,  be  brought 
within  the  term  "infamous."  At  the  time  of  the  adoption  of  the  amend- 
ment, attention  was  no  doubt  called  to  existing  constitutional  provisions, 
and  had  the  requirement  that  all  classes  of  crimes  should  be  passed  on  by 
grand  juries  before  trial  been  intended,  suitable  language  for  that  purpose 
would  have  been  employed.  Indeed,  by  the  use  of  the  words  "  capital  or 


JEOPARDY.  347 

otherwise  infamous  crimes,"  it  may  be  readily  inferred  that  a  grand  jury 
was  to  pass  on  such  and  such  only.     U.  S.  v.  Ebert,  I  Cent.  L.  J.  205. 

The  clause  in  the  fifth  amendment  "  when  in  actual  service  in  time  of 
war  or  public  danger,"  evidently  only  refers  to  the  militia.  It  has  no  refer- 
ence to  the  army  or  navy  of  the  United  States.  Such  is  the  reasonable 
grammatical  construction.  In  re  Robert  D.  Bogart,  2  Saw.  396. 

Congress  may  confer  jurisdiction  upon  the  military  and  naval  authori- 
ties to  try  military  and  naval  offenses  by  courts  martial,  and  this  jurisdic- 
tion may  be  exercised  both  in  peace  and  in  war.  In  re  Robert  D.  Bogart, 
2  Saw.  396. 

Congress  may  authorize  a  trial  by  court  martial  for  military  and  naval 
offenses  committed  while  the  offender  was  in  actual  service,  after  his  con- 
nection with  the  service  has  ceased.  It  is  not  merely  a  "case"  that  the 
court  is  to  try,  but  a  "  case  arising  in  the  land  or  naval  force."  ,A  case,  in 
ordinary  parlance,  is  that  which  falls,  comes  or  happens — an  event — also  a 
state  of  facts  involving  a  question  for  discussion.  But  the  event — that 
which  happens — the  state  of  facts  presenting  the  question  for  discussion — 
must  have  arisen — must  have  had  an  origin.  Among  the  ordinary  and 
most  common  definitions  of  the  word  "arise"  are  "to  proceed,  to  issue,  to 
spring ;"  and  a  case  arising  in  the  land  or  naval  forces,  upon  a  fair  and  rea- 
sonable construction  of  the  whole  article,  is  a  case  proceeding,  issuing  or 
springing  from  acts  in  violation  of  the  naval  laws  and  regulations  com- 
mitted while  in  the  naval  forces  or  services — a  case  originating  in  the  naval 
force  or  service ;  or,  in  other  words,  offenses  against  the  laws  regulating 
the  navy,  committed  while  in  the  naval  forces.  In  re  Robert  D.  Bogart, 
2  Saw.  396. 

Jeopardy. 

(ft)  The  expression  "jeopardy  of  limb  "  was  used  in  reference  to  the  na- 
ture of  the  offense,  and  not  to  designate  the  punishment  for  an  offense,  for 
no  such  punishment  as  loss  of  limb  was  inflicted  by  the  laws  of  any  of  the 
States  at  the  adoption  of  the  Constitution.  Punishment  by  deprivation  of 
the  limbs  of  the  offender  would  be  abhorrent  to  the  feelings  and  opinions 
of  the  enlightened  age  in  which  the  Constitution  was  adopted,  and  it  had 
grown  into  disuse  in  England  for  a  long  period  antecedently.  The  term 
"jeopardy  of  limb"  refers  to  offenses  which  in  former  ages  were  punish- 
able by  dismemberment,  and  intends  to  comprise  the  crimes  denominated 
in  the  law  felonies.  People  v.  Goodwin,  18  Johns.  187. 

The  rule  means  no  more  than  this— that  no  man  shall  be  twice  tried  for 
the  same  offense.  The  test  by  which  to  decide  whether  a  person  has  been 
once  tried  can  only  be  by  a  plea  of  autrefois  acquit  or  a  plea  of  autrefois 
convict.  The  power  to  discharge  a  jury  in  cases  of  supreme  and  absolute 
necessity  does  exist,  and  may  be  exercised  without  operating  as  an  acquit- 


348  AMENDMENTS    TO    THE    CONSTITUTION. 

tal  of  the  prisoner.  It  extends  to  felonies  as  well  as  to  misdemeanors.  In 
a  legal  sense  a  prisoner  is  not  once  put  in  jeopardy  until  the  verdict  of  the 
jury  is  rendered  for  or  against  him.  U.  S.  v.  Perez,  9  Wheat.  579;  U.  S. 
v.  Haskell,  4  Wash.  402;  People  v.  Goodwin,  18  Johns.  187;  State  -z/. 
Moor,  Walk.  134;  Comm.  v.  Merrill,  Thach.  Cr.  Cas.  I ;  Hoffman  v.  State, 
20  Md.  425. 

The  court  may,  in  its  discretion,  discharge  the  jury  in  a  capital  case,  as 
well  as  in  case  of  a  misdemeanor.  U.  S.  v.  Haskell,  4  Wash.  402. 

Where  the  jury,  from  the  length  of  time  they  have  been  considering  a 
cause,  and  their  inability  to  agree,  may  be  fairly  presumed  as  never  likely 
to  agree,  unless  compelled  so  to  do  from  the  pressing  calls  of  famine  or 
bodily  exhaustion,  they  may  be  discharged,  and  such  discharge  will  not 
operate  as  an  acquittal.  People  v.  Goodwin,  18  Johns.  187 ;  U.  S.  v.  Perez, 
9  Wheat.  579. 

If  the  jury  do  not  agree  on  the  last  day  of  the  term,  they  may  be  dis- 
charged. State  v.  Moor,  Walk.  134. 

If  one  of  the  jurors  is  attacked  with  a  sudden  illness,  the  jury  may  be 
discharged.  Comm.  v.  Merrill,  Thach.  Cr.  Cas.  I. 

If  the  jury  is  impaneled  and  sworn  by  inadvertence,  in  a  case  of  mis- 
demeanor, before  the  prisoner  has  been  arraigned,  or  in  any  manner  an- 
swered to  the  indictment,  the  proceeding  is  a  nullity,  and  may  be  disre- 
garded, and  a  jury  impaneled  in  the  regular  order.  U.  S.  v.  Riley,  5 
Blatch.  204. 

Where  a  jury  is  impaneled  and  sworn,  but  subsequently  discharged 
without  the  consent  of  the  accused,  on  account  of  the  absence  of  witnesses 
for  the  State,  this  does  not  prevent  a  subsequent  trial.  Hoffman  v.  State, 
20  Md.  425. 

If  the  court,  after  the  jury  is  impaneled  and  sworn  in  a  case  of  mis- 
demeanor, finds  that  a  juror  is  so  biased  either  against  the  prisoner  or  the 
Government  that  he  is  unfit  to  sit  in  the  cause,  it  may  discharge  the  jury 
and  continue  the  cause.  U.  S.  v.  Norris,  I  Curt  23. 

The  illness  of  the  district  attorney  or  the  absence  of  witnesses  when 
such  illness  did  not  occur,  and  the  absence  of  the  witnesses  was  not  first 
made  known  until  after  the  swearing  of  the  jury,  is  not  a  ground  for  dis- 
charging the  jury.  U.  S.  v.  Watson,  3  Ben.  I. 

The  court  may  discharge  the  jury  on  account  of  the  insanity  of  one  ot 
the  jurymen.  U.  S.  v.  Haskell,  4  Wash.  402. 

If  the  district  attorney  enters  a  nolle  prosequt  after  the  jury  is  impan- 
eled and  sworn,  in  an  action  for  feloniously  taking  letters  from  the  mail, 


DUE    PROCESS.  349 

the  accused  can  not  be  again  indicted  for  the  same  offense.     U.  S.  z/.  Shoe- 
maker, 2  McLean,  114. 

This  provision  is  designed  to  shield  the  prisoner  against  oppression  and 
injustice,  and  puts  it  out  of  the  power  of  the  court  to  subject  him  to  the 
danger  of  another  trial,  except  at  his  election  and  request.  He,  however, 
has  the  right  to  waive  the  protection,  and  may  do  so  by  applying  for  a  new 
trial.  U.  S.  v.  Williams,  i  Cliff.  5;  U.  S.  v.  Harding,  I  Wall.  Jr.  127;  U. 
S.  v.  Keen,  i  McLean,  429 ;  U.  S.  v.  Conner,  3  McLean,  573 ;  U.  S.  v. 
Macomb,  5  McLean,  286;  contra,  U.  S.  v.  Gilbert,  2  Sum.  19. 

The  principle  asserted  by  this  provision,  applies  to  all  cases  where  a 
second  punishment  is  attempted  to  be  inflicted  for  the  same  offense  by  a 
judicial  sentence.  Ex  parte  Lange,  18  Wall.  163. 

When  a  punishment  has  been  in  part  executed,  the  court  can  not  vacate 
the  judgment  entirely,  and  without  reference  to  what  has  been  done,  im- 
pose another  punishment  on  the  prisoner  on  the  same  verdict.  Ex  parte 
Lange,  18  Wall.  163. 

Where  the  indictment,  tm  demurrer,  is  held  bad,  the  prisoner  may  be 
remanded  for  further  proceedings.  U.  S.  v.  Townmaker,  Hemp.  299. 

Willie**. 

(c)  The  words  "  criminal  case,"  mean  a  case  in  which  punishment  for 
crime  is  sought  to  be  visited  upon  the  person  of  the  offender  in  the  ordinary 
course  of  criminal  prosecution,  in  contradistinction  to  a  proceeding  in  rem 
to  effect  a  forfeiture  of  the  thing  to  which  the  offense  primarily  attaches. 
U.  S.  v.  Parker,  21  I.  R.  R.  251 ;  U.  S.  v.  Distillery,  8  C.  L.  N.  57. 

Where  a  charge  of  misconduct  is  made  against  an  officer,  whether 
amounting  to  an  indictable  offense  or  only  to  his  discredit  as  such  officer, 
which  might  furnish  grounds  for  his  removal  or  impeachment,  he  is  not 
bound  to  be  a  witness  against  himself.  U.  S.  v.  Collins,  I  Woods,  499. 

This  provision  applies  to  criminal  cases  only.  Ex  parte  Meador,  i  Abb. 
C.  C.  317. 

A  statute  permitting  an  assessor  of  internal  revenue  to  summon  a  party 
before  him  to  produce  his  books  and  submit  to  an  examination  for  the  pur- 
pose of  ascertaining  the  tax  due  from  him,  is  valid,  for  it  is  a  civil  proceed- 
ing. Ex  parte  Mark  Strouse,  i  Saw.  605  ;  Ex  parte  John  T.  Phillips,  10 
I.  R.  R.  107. 

Due  Proce§s. 

(d)  The  Constitution  contains  no  description  of  those  processes  which 
it  was  intended  to  allow  or  forbid.     It  does  not  even  declare  what  prin- 
ciples are  to  be  applied  to  ascertain  whether  it  be  due  process.     It  is  mani- 


35O  AMENDMENTS    TO    THE    CONSTITUTION. 

fest  that  it  was  net  left  to  the  legislative  power  to  enact  any  process  which 
might  be  devised.  The  article  is  a  restraint  «n  the  legislative  as  well  as  on 
the  executive  and  judicial  powers  of  the  Government,  and  can  not  be  so 
construed  as  to  leave  Congress  free  to  make  any  process  "  due  process  of 
law  "  by  its  mere  will.  Murray  v.  Hoboken  Co.  18  How.  272  ;  Newcomb 
v.  Smith,  i  Chand.  71  ;  U.  S.  v.  Taylor,  3  McLean,  539. 

"  Due  process  of  law  "  does  not  necessarily  import  a  jury  trial  as  essen- 
tial in  every  case  to  deprive  a  person  of  his  life,  liberty  or  property.  Ex 
parte  Meador,  i  Abb.  C.  C.  317. 

The  words  "  due  process  "  of  law  were  undoubtedly  intended  to 
convey  the  same  meaning  as  the  words  "  by  the  law  of  the  land  "  in 
Magna  Charta.  Murray  v.  Hoboken  Co.  18  How.  272. 

This  amendment  does  nothing  more  than  declare  a  great  common-law 
principle  applicable  to  all  governmeats,  both  State  and  Federal,  which  has 
existed  from  the  time  of  Magna  Charta.  Young  v.  McKenzie,  3  Geo.  31  ; 
Parkham  v.  Justices,  9  Geo.  341  ;  Ervine's  Appeal,  16  Penn.  256. 

Due  process  of  law  ordinarily  implies  and  includes  a  complainant,  a 
defendant,  and  a  judge,  regular  allegations,  an  opportunity  to  answer,  and 
a  trial  according  to  some  settled  course  of  judicial  proceeding.  Huber  v. 
,  53  Penn.  112. 


In  general,  "  due  process  of  law  "  means  a  legal  proceeding  under  the 
direction  of  a  court.  Congress  may  regulate  the  proceedings  if  the  sub- 
stantial rights  of  the  party  are  protected  by  forms  prescribed  by  law. 
Newcomb  v.  Smith,  i  Chand.  71. 

A  law  abolishing  imprisonment  for  debt  does  not  disturb  vested  rights, 
for  remedies  are  always  subject  to  such  modifications  as  the  legislature  in 
the  constitutional  exercise  of  its  power  shall  think  proper  to  adopt.  Gray 
v.  Munroe,  i  McLean,  528. 

It  is  of  no  consequence  whether  the  property  is  real  or  personal  estate, 
because  the  Constitution  protects  a  man  in  the  enjoyment  and  dominion  of 
his  personal  as  potentially  as  of  his  real  estate.  Ervine's  Appeal,  16  Penn. 
256. 

No  person  can  be  deprived  of  his  liberty  on  the  ground  that  he  has  neg- 
lected to  assert  his  rights.  Allen  v.  Sarah,  2  Harring.  434. 

If  a  party  purchases  a  machine  from  a  patentee  without  any  limitation 
as  to  the  time  for  which  it  is  to  be  used,  it  becomes  his  property.  Its  only 
value  consists  in  its  use.  A  special  act  of  Congress  passed  afterwards,  de- 
priving him  of  the  right  to  use  it,  can  not  be  regarded  as  due  process  of 
law,  and  if  a  special  act  extending  a  patent  had  that  effect,  it  would  be  so 
far  unconstitutional.  Bloomer  v.  McQuewen,  14  How.  539. 


DUE    PROCESS.  351 

Provisions  for  searches  and  seizures  to  aid  in  the  collection  of  the  rev- 
enue by  duties,  are  not  repugnant  to  this  clause.  In  the  matter  of  John  R. 
Platt,  7  Ben.  261 ;  s.  C.  19  I.  R.  R.  132. 

Congress  has  no  power  to  organize  a  board  of  revision  to  nullify  titles 
confirmed  many  years  before  by  the  authorized  agents  of  the  Government. 
Reichart  v.  Felps,  6  Wall.  160. 

A  statute  which  perfects  a  voidable  entry  and  gives  a  patent  therefor, 
is  valid,  although  it  divests  a  grant  made  after  the  entry  but  before  its  pas- 
sage. Williams  v.  Norris,  12  Wheat.  117. 

A  board  of  election  officers  constituted  under  State  laws  is  not  a  judi- 
cial tribunal,  and  has  no  power  to  adjudge  the  guilt  or  innocence  of  an 
alleged  violator  of  the  laws  of  the  United  States.  A  trial  before  such 
officers  is  not  due  process  of  law.  Huber  v.  Reily,  53  Penn.  112. 

Congress  has  no  power  to  provide  for  the  absolute  forfeiture  of  land,  as 
a  penalty  for  the  non-payment  of  taxes,  without  any  process.  Martin  z/. 
Snowden,  18  Gratt.  100. 

This  section  prohibits  the  passage  of  a  law  by  Congress,  authorizing 
the  arrest  of  a  citizen  without  just  cause,  because  such  arrest  deprives  him 
of  his  liberty.  Griffin  v.  Wilcox,  21  Ind.  370. 

A  statute  repealing  a  prior  grant  of  land  is  void.  U.  S.  v.  Minn.  &  N. 
W.  R.  R.  Co.  i  NJinn.  127;  S.  C.  I  Black,  358. 

The  law  of  the  land  authorizes  the  employment  of  auditors,  and  an  in- 
quisition without  notice,  and  a  warrant  of  distress,  to  enforce  the  payment 
of  balances  due  from  receivers  of  the  revenue.  Although  "  due  process  of 
law  "  generally  implies  and  includes  actor,  reits,  judex,  regular  allegations, 
opportunity  to  answer,  and  a  trial  according  to  some  settled  course  of  judi- 
cial proceedings,  yet  this  is  not  universally  true.  Murray  v.  Hoboken  Co. 
18  How.  272. 

Whenever  the  Government  seeks  the  property  of  the  citizen,  in  the  ex- 
ercise of  the  right  of  taxation,  the  processes  for  seizure  and  assessment  are 
in  the  most  plenary  sense  within  the  discretion  of  the  legislature.  Pullan 
v.  Kinsinger,  2  Abb.  C.  C.  94. 

Congress  can  not  annul  the  judgment  of  a  court  already  rendered,  or 
the  rights  determined  thereby.  When  they  have  passed  into  judgment 
they  become  absolute.  State  v.  Wheeling  Bridge  Co.  18  How.  421. 

After  the  entry  of  a  decree  requiring  the  removal  of  an  obstruction  to 
navigation,  Congress  may  pass  an  act  legalizing  the  obstruction,  and  the 
decree  can  not  then  be  enforced.  Congress  may  interfere  with  that  part  of 
the  decree  which  remains  executory.  State  v.  Wheeling  Bridge  Co.  18 
How.  421. 


352  AMENDMENTS    TO    THE    CONSTITUTION. 

% 

A  statute  authorizing  the  filing  of  a  bill  of  review,  to  set  aside  a  decree 
rendered  in  favor  of  a  fictitious  person,  does  not  divest  any  vested  right, 
and  is  not  an  exercise  of  judicial  powers.  Sampeyreac  v.  U.  S.  7  Pet. 
222. 

A  rebel  may  lawfully  be  slain  in  battle  and  thus  be  deprived  of  life,  or 
he  may  be  lawfully  captured  in  battle  and  thus  deprived  of  liberty,  because 
these  being  acts  of  war  are  authorized  by  those  other  provisions  of  the 
Constitution  which  authorize  the  prosecution  of  the  war.  Norris  v.  Doni- 
phan,  4  Mete.  (Ky.)  385. 

A  statute  which  makes  an  order  of  the  President  a  sufficient  defense  for 
an  act  previously  done,  is  void.  Johnson  v.  Jones,  44  111.  142. 

A  statute  which  attempts  to  deprive  a  person  of  his  right  to  recover  a 
rent  which  had  previously  been  paid  to  a  provost  marshal,  is  unconstitu- 
tional. Clark  v.  Mitchell,  64  Mo.  564. 

Public  Use. 

(e)  The  right  to  appropriate  private  property  to  private  use,  has  been 
deemed  to  be  precluded  by  the  provision  authorizing  it  to  be  taken  for 
public  use  only  upon  just  compensation.  Newcomb  v.  Smith,  i  Chand.  71. 

This  clause  was  established',  for  the  protection  of  personal  safety  and 
private  property.  It  addresses  itself  to  the  common  sense  of  the  people, 
and  ought  not  to  be  filed  away  by  legal  subtleties.  It  has  its  foundations 
in  natural  justice,  and  without  its  pervading  efficacy  other  rights  would  be 
useless.  If  the  legislature  possessed  an  irresponsible  power  over  every 
man's  private  estate,  whether  acquired  by  will,  deed  or  inheritance,  all 
inducement  to  acquisition,  industry  and  economy  would  be  removed.  The 
principal  object  of  government  is  the  administration  of  justice  and  the  pro- 
motion of  morals.  But  if  property  is  subject  to  the  caprice  of  an  annual 
assemblage  of  legislators  acting  tumultuously  and  without  rule  or  prece- 
dent, and  without  hearing  the  party,  stability  in  property  will  cease  and 
justice  be  at  an  end.  If  the  Government  is  interdicted  from  taking  private 
property,  even  for  public  use,  without  just  compensation,  how  can  the 
legislature  take  it  from  one  man  and  dispose  of  it  as  they  think  fit  ?  The 
great  principle  is  that  a  man's  property  is  his  own,  and  that  he  shall  enjoy 
it  according  to  his  pleasure,  until  it  is  proved  in  due  process  of  law  that 
it  is  not  his,  but  belongs  to  another.  Ervine's  Appeal,  16  Penn.  256. 

The  power  of  the  Government  respecting  public  improvements,  is  a  sov- 
ereign power.  It  rests  in  the  wisdom  of  Congress  to  determine  when  and 
in  what  manner  the  public  necessities  require  its  exercise,  and  with  the 
reasonableness  of  the  exercise  of  that  discretion  the  courts  will  not  inter- 
fere. Swan  v.  Williams,  2  Mich.  427 ;  Avery  v.  Fox,  I  Abb.  C.  C.  246. 


PUBLIC  USE.  353 

The  constitutionality  ot  the  right  is  not  measured  by  the  precise  amount 
or  degree  of  the  public  benefit  to  be  conferred.  Wherever  there  is  even  an 
apparent  public  interest  to  sustain  a  statute,  the  legislative  power,  or  such 
subordinate  person  or  body  as  it  may  designate,  is  the  proper  judge  of  its 
necessity.  The  question  in  all  such  cases  is,  not  whether  the  law  is  indis- 
pensable, but  whether  it  may  be  useful  and  convenient.  Newcomb  v. 
Smith,  i  Chand.  71. 

The  Constitution  does  not  recognize  military  necessity,  nor  any  other 
necessity  whatever,  as  an  authority  for  "  taking  private  property  for  public 
use,"  in  peace  or  in  war,  without  just  compensation.  Norris  v.  Doniphan, 
4  Mete.  (Ky.)  385  ;  Corbin  v.  Marsh,  2  Duvall,  193. 

Extraordinary  and  unforseen  occasions  arise  in  cases  of  extreme  neces- 
sity in  time  of  war,  or  of  immediate  and  impending  public  danger,  in  which 
private  property  may  be  impressed  into  the  public  service,  or  may  be  seized 
and  appropriated  to  the  public  use,  or  may  even  be  destroyed,  without  the 
consent  of  the  owner.  U.  S.  v.  Russell,  13  Wall.  623. 

The  right  of  the  Government  to  destroy  or  appropriate  private  property, 
without  compensation,  in  cases  of  emergency,  is  not  confined  to  enemy's 
country,  but  may  be  exercised  wherever  military  operations  are  carried  on 
upon  which  the  emergency  arises.  Taylor  v.  Railroad  Co.  6  Cold.  646. 

The  public  danger  must  be  immediate,  imminent  and  impending,  and 
the  emergency  in  the  public  service  must  be  extreme  and  imperative,  and 
such  as  will  not  admit  of  delay  or  a  resort  to  any  other  source  of  supply, 
and  the  circumstances  must  be  such  as  imperatively  require  the  exercise  of 
that  extreme  power  in  respect  to  the  particular  property  so  impressed,  ap- 
propriated or  destroyed.  U.  S.  v.  Russell,  13  Wall.  623. 

The  necessity  which  justifies  the  taking  by  a  military  officer  need  not  be 
an  overpowering  necessity,  which  admits  of  no  alternative ;  but  if  the  inter- 
ests of  the  Government  may  probably  be  promoted  thereby,  it  his  right  and 
duty  to  take  and  appropriate  it.  Taylor  v.  Railroad  Co.  6  Cold.  646. 

While  active  military  operations  are  being  carried  on,  the  military  com- 
mander is  the  judge  of  the  necessity  for  taking  private  property,  and  he 
can  not  be  held  responsible  in  a  civil  tribunal  for  mere  errors  of  judgment. 
Taylor  v.  Railroad  Co.  6  Cold.  646. 

If  a  military  commander,  in  a  time  of  war,  acts  in  good  faith  for  the  ac- 
complishment of  the  purposes  of  the  war,  his  acts,  whether  of  destruction 
or  appropriation,  are  valid.  Taylor  v.  Railroad  Co.  6  Cold.  646. 

If  movable  property  is  taken  in  good  faith  by  a  military  commander  for 

the  public  use,  with  the  intent  to  appropriate  it  absolutely  and  permanently 

to  such  use,  the  title  vests  in  the  Government,  and  will  not  revert  to  the 

original  owner  upon  the  subsequent  discovery  that  it  is  not  necessary  ac- 

23 


354  AMENDMENTS    TO    THE    CONSTITUTION*. 

tually  to  consume  the  property  in  such  use.     Taylor  v.  Railroad  Co.  6  Cold. 
646 ;  Williams  z/.  Wickerman,  44.  Mo.  484. 

The  rightful  taking  of  private  property  for  use  or  destruction  when  the 
public  exigency  demands  it,  by  a  military  officer,  is  an  exercise  of  the  right 
of  eminent  domain,  and  compensation  must  be  made  by  the  Government 
to  the  owner.  Grant  v.  U,  S.  I  Ct.  Cl.  41 ;  S.  C.  2  Ct.  Cl.  551 ;  Wiggins  v. 
U.  S.  3  Ct.  Cl.  412. 

The  courts  can  not  interfere  and  declare  such  acts  void,  unless  in  cases 
of  palpable  and  wanton  abuse  of  power,  or  when  the  evidence  of  a  de- 
parture from  the  rule  of  public  use  is  manifest  on  the  face  of  the  act.  New- 
comb?/.  Smith,  i  Chand.  71. 

The  Constitution  only  provides  for  the  general  principle.  The  means 
of  ascertaining  the  just  compensation  are  left  to  be  decided  by  the  public 
authority  which  shall  give  the  power  to  take  private  property  for  public  use. 
Ches.  &  O.  Canal  Co.  v.  Key,  3  Cranch  C.  C.  599. 

As  the  Constitution  does  not  provide  any  mode  in  which  the  amount  of 
compensation  shall  be  ascertained,  it  is  fairly  to  be  presumed  that  the  fram- 
ers  of  that  instrument  intended  to  leave  that  subject  to  be  regulated  in  such 
manner  as  Congress,  in  its  discretion,  might  deem  best  calculated  to  carry 
into  effect  the  constitutional  provision,  according  to  its  spirit  and  intent. 
Swan  v.  Williams,  2  Mich.  427. 

The  Constitution  does  not  require  that  the  value  shall  be  paid,  but  that 
just  compensation  shall  be  given.  Just  compensation  means  a  compensa- 
tion which  will  be  just  in  regard  to  the  public  as  well  as  in  regard  to  the 
individual.  Ches.  &  O.  Canal  Co.  V.  Key,  3  Cranch  C.  C.  599. 

A  statute  which  allows  the  jury  to  consider  the  benefits  from  a  public 
improvement  in  estimating  the  damages,  is  valid.  Ches.  &  O.  Canal  Co. 
•y.  Key,  3  Cranch  C.  C.  599. 

If  the  law  taking  private  property  for  public  use  provides  a  special  tri- 
bunal for  ascertaining  the  compensation,  the  owner  can  not  resort  to  any 
other.  Meade  v.  U.  S.  2  Ct.  Cl.  224. 

The  framers  of  this  clause  did  not  intend  that  every  subordinate  officer, 
or  petty  agent  of  the  United  States,  might  undertake  to  decide  for  himself 
when  the  exigency  has  occurred,  or  the  necessity  exists,  for  the  seizure  and 
appropriation  of  the  property  of  the  citizen,  and  every  attempt  on  the  part 
of  any  public  officer  to  do  so,  unless  justified  by  some  pressing  emergency 
or  overruling  necessity,  is  a  simple  trespass,  for  which  he  is  amenable  to 
the  law,  but  for  which,  being  beyond  the  scope  of  his  powers,  the  United 
States  is  in  nowise  responsible.  Pitcher  v.  U.  S.  i  N.  £  H.  7. 

This  provision  has  always  been  understood  as  referring  only  to  a  direct 


PUBLIC  USE.  355 

appropriation,  and  not  to  consequential  injuries  resulting  from  the  exercise 
of  lawful  power.  Legal  Tender  Cases,  12  Wall.  457;  contra,  Hepburn  v. 
Grisvvold,  8  Wall.  603  ;  S.  C.  2  Duvall,  20. 

A  statute  which  makes  treasury  notes  a  legal  tender  in  payment  of 
debts  is  valid,  for  it  makes  the  notes  as  valuable  as  gold  coin  for  all  com- 
mercial purposes.  The  difference  between  the  value  of  gold  coin  and  the 
value  of  such  notes  can  not  be  regarded,  because  it  is  not  recognized  by 
law.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

A  proceeding  by  complaint  to  assess  damages  for  taking  land  for  pub- 
lic use,  where  the  right  of  trial  by  jury  is  preserved,  is  due  process  of  law. 
Newcomb  V.  Smith,  I  Chand  71. 

Whether  the  statute  does  or  does  not  require  that  notice  shall  be  given 
to  the  owner  of  the  property  of  the  proceedings  to  assess  the  damages, 
will  not  affect  its  constitutionality.  Swan  v.  Williams,  2  Mich.  427. 

The  title  of  the  owner  is  not  divested  until  indemnity  is  afforded  him. 
Corbin  v.  Marsh,  2  Duvall,  193. 

A  statute  diminishing  tolls  which  have  been  mortgaged  to  secure 
bonds,  is  void,  because  it  takes  private  property  for  public  use  without  due 
compensation.  U.  S.  v.  Louisville  Canal  Co.  i  Cent.  L.  J.  101. 

This  provision  is  not  applicable  to  taxation.  Michigan  Central  R.  R. 
Co.  v.  Slack,  22  I.  R.  R.  337. 

The  power  to  confiscate  the  property  of  public  enemies  is  not  affected 
by  the  restrictions  imposed  by  this  amendment.  Miller  v.  U.  S.  1 1  Wall. 
268. 

A  statute  authorizing  the  taking  of  private  property  for  use  as  mill 
sites  and  mill  dams,  is  valid.  Newcomb  v.  Smith,  i  Chand.  71. 

The  grant  of  the  power  to  a  corporation  to  condemn  land  for  the  pur- 
pose of  constructing  a  canal  or  railroad  is  valid.  If  the  object  designed 
by  the  legislature  in  the  granting  of  the  charter  is  the  public  interest,  to  be 
secured  by  the  exercise  of  powers  delegated  for  that  purpose,  then,  al- 
though private  interest  may  be  incidentally  promoted,  the  corporation  is 
essentially  the  trustee  of  the  Government  for  the  promotion  of  the  objects 
desired — a  mere  agent  to  which  authority  is  delegated  to  work  out  the 
public  interest  through  the  means  provided  by  the  Government  for  that 
purpose,  and  broadly  distinguishable  from  one  created  for  the  attainment 
of  no  public  end,  and  from  which  no  benefit  accrues  to  the  community, 
except  such  as  results  incidentally  and  not  necessarily  from  its  operations. 
In  the  creation  of -this  class  of  corporations,  public  duties  and  public  in- 
terests are  involved,  and  the  discharge  of  those  duties  and  the  attainment 
of  those  interests  are  the  primary  objects  to  be  worked  out  through  the 


356  AMENDMENTS    TO    THE    CONSTITUTION. 

powers  delegated  to  them.  To  secure  these,  the  right  of  eminent  domain 
may  be  exercised  by  the  condemnation  of  lands  to  their  use.  Govern- 
ments more  frequently  effect  these  objects  through  the  aid  of  corporations 
than  by  their  immediate  agents,  and  experience  proves  that  this  is  the  most 
wise  and  economical  method.  The  grant  to  the  corporation  is  in  no  essen- 
tial particular  different  from  the  employment  of  commissioners  or  agents. 
Swan  v,  Williams,  2  Mich.  427 ;  Balto.  &  Ohio  R.  R.  Co.  v.  Van  Ness,  4 
Cranch  C.  C.  593 ;  Ches.  &  O.  Canal  Co.  v.  Key,  3  Cranch  C.  C.  599. 

A  statute  providing  for  the  condemnation  of  land  for  a  private  way,  is 
valid.  Ex  parte  Robert  Barnard,  4  Cranch  C.  C.  294. 

In  the  exercise  of  the  power  to  establish  post  offices  and  post  roads, 
Congress  can  not  take  private  property  without  the  consent  of  the  owner, 
or  a  just  compensation  for  the  property.  Dickey  v.  Turnpike  Co.  7 
Dana,  119. 

Congress  in  improving  the  navigable  waters  of  the  United  States  can 
not  divert  the  water  from  a  natural  channel  without  providing  compensa- 
tion for  the  riparian  owner  who  is  injured  thereby.  Avery  v.  Fox,  i  Abb. 
C.  C.  246. 

The  power  to  appropriate  land  or  other  property  within  the  States  for 
its  own  use  belongs  to  the  Federal  Government,  for  it  is  essential  to  its  in- 
dependent existence  and  perpetuity.  Kohl  v.  United  States,  91  U.  S. 
367. 

No  State  can  condemn  property  for  the  use  of  the  United  States.  The 
power  of  the  Federal  Government  is  complete  in  itself.  It  can  neither  be 
enlarged  nor  diminished  by  a  State,  nor  can  any  State  prescribe  the  man- 
ner in  which  it  must  be  exercised.  The  consent  of  a  State  can  never  be 
a  condition  precedent  to  its  exercise.  Kohl  v.  United  States,  91  U.S. 
367  ;  Trombley  v.  Humphrey,  23  Mich.  471 ;  Darlington  v.  U.  S.  33  Leg. 
Int.  409  ;  contra,  Gilmer  v.  Lime  Point,  18  Cal.  229;  Burt  v.  Merchants' 
Ins.  Co.  106  Mass.  356. 

ARTICLE  VI. 

i.  In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an  im- 
partial jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation  ;  to  be  con- 
fronted with  the  witnesses  against  him  ;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor ; 
and  to  have  the  assistance  of  counsel  for  his  defense. 


CRIMINAL    PROSECUTIONS.  357 

This  amendment  does  not  apply  to  the  acts  of  the  legislatures  of  the 
several  States.  Twitchell  v.  Comm.  7  Wall.  321  ;  Ex  parte  Newell  Smith, 
10  Wend.  449;  Murphy  v.  People,  2  Cow.  815  ;  Jackson  v.  Wood,  2  Cow. 
819;  Campbell  ?'.  State,  u  660.353;  Guillote  v.  New  Orleans,  1.2  La. 
Ann.  432. 

This  provision  applies  only  to  the  case  of  offenses  committed  within 
the  limits  of  a  State.  U.  S.  v.  Dawson,  1 5  How.  467. 

The  trial  for  a  criminal  offense  must  be  in  a  district  ascertained  by  law 
previous  to  the  commission  of  the  offense.  An  indictment  found  in  a  dis- 
trict created  after  the  commission  of  the  offense  is  void.  U.  S.  v.  Maxon, 
5  Blatch.  360. 

The  framers  of  the  Constitution  meant  to  limit  the  right  of  trial  by  jury 
in  the  sixth  amendment  to  those  persons  who  are  subject  to  indictment  or 
presentment  in  the  fifth.  Ex  parte  Milligan,  4  Wall.  2. 

All  other  persons  except  those  who  are  connected  with  the  army  or 
the  navy,  citizens  of  States  where  the  courts  are  open,  if  charged  with 
crimes,  are  guaranteed  the  privilege  of  trial  by  jury,  and  can  not  be  tried 
by  a  military  commission.  Ex  parte  Milligan,  4  Wall.  2. 

A  party  can  not  be  tried  under  the  laws  of  one  State  for  an  act  done 
in  another  State.  People  v.  Merrill,  2  Parker  Cr.  Cas.  590. 

A  proceeding  to  annul  the  license  of  a  pilot  for  neglect  of  duty  is  not  a 
criminal  proceeding.  Low  v.  Commissioners,  R.  M.  Charlt.  302. 

The  power  to  confiscate  the  property  of  public  enemies  is  not  affected 
by  the  restrictions  imposed  by  this  amendment.  Miller  v.  U.S.  1 1  Wall. 
268. 

An  indictment  must  set  forth  the  offense  with  clearness  and  all  neces- 
sary certainty,  to  apprise  the  accused  of  the  crime  with  which  he  stands 
charged.  U.  S.  v.  Cruikshank,  I  Woods,  308 ;  S.  C.  92  U.  S.  542. 

If  the  defendant,  for  the  purpose  of  obtaining  a  trial,  admits  that  the 
absent  witnesses  will  testify  to  the  facts  set  forth  in  the  affidavit  produced  on 
behalf  of  the  United  States,  he  thereby  waives  his  right  to  be  confronted 
with  the  witnesses.  U.  S.  v.  Sacramento,  2  Mont.  239. 

ARTICLE   VII. 

i.  In  suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved  ;  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  the  com- 
mon law. 


358  AMENDMENTS    TO    THE    CONSTITUTION. 

This  provision  does  not  apply  to  the  legislation  of  the  several  States. 
Justices  v.  Murray,  9  Wall.  274;  Foster  v.  Jackson,  57  Geo.  206;  Edwards 
v.  Elliott,  21  Wall.  532;  Livingston  v.  Moore,  7  Pet.  469;  Walker  v.  Sau- 
vinet,  92  U.  S.  90;  Livingston  z/.  Mayor,  8  Wend.  85  ;  Colt  v.  Eves,  12 
Conn.  243;  Dawson  v.  Shaver,  i  Blackf.  204;  Borings.  Williams,  17  Ala. 
510;  Lee  v.  Tillotson,  24  Wend.  337  ;  Railroad  Co.  v.  Heath,  9  Ind.  558; 
State  v.  Keyes,  8  Vt.  57;  Huntington  v.  Bishop,  5  Vt.  186. 

The  State  legislature,  in  regulating  the  rights  of  property,  can  not  radi- 
cally change  the  mode  of  proceeding  prescribed  for  the  Federal  courts,  or 
direct  those  courts  in  a  trial  at  common  law,  to  appoint  commissioners  for 
the  decision  of  questions  which  a  court  of  common  law  must  submit  to  a 
jury.  Bank  v.  Dudley,  2  Pet.  492  ;  Green  v.  Biddle,  8  Wheat,  i. 

The  phrase  "  common  law  "  found  in  this  clause,  is  used  in  contradis- 
tinction to  equity,  and  admiralty,  and  maritime  jurisprudence.  It  is  well 
known  that  in  civil  causes  in  courts  of  equity  and  admiralty  juries  do  not 
intervene,  and  that  courts  of  equity  use  the  trial  by  jury  only  in  extraordi- 
nary cases,  to  inform  the  conscience  of  the  court.  When,  therefore,  the 
amendment  requires  that  the  right  of  trial  by  jury  shall  be  preserved  in 
suits  at  common  law,  the  natural  conclusion  is  that  this  distinction  was 
present  to  the  minds  of  the  framers  of  the  amendment.  By  common  law 
they  meant  not  merely  suits  which  the  common  law  recognized  among  its 
old  and  settled  proceedings,  but  suits  in  which  legal  rights  were  to  be  as- 
certained and  determined,  in  contradistinction  to  those  where  equitable 
rights  alone  were  recognized  and  equitable  remedies  administered,  or  where, 
as  in  the  admiralty,  a  mixture  of  public  law  and  of  maritime  law  and  equity 
was  often  found  in  the  same  suit.  Probably  there  were  few,  if  any  States, 
in  which  some  new  legal  remedies,  differing  from  the  old  common-law 
forms,  were  not  in  use,  but  in  which,  however,  the  trial  by  jury  intervened, 
and  the  general  regulations  in  other  respects  were  according  to  the  course 
of  the  common  law.  In  a  just  sense,  the  amendment  may  well  be  con- 
strued to  embrace  all  suits  which  are  not  of  equity  and  admiralty  jurisdic- 
tion, whatever  may  be  the  peculiar  form  which  they  may  assume,  to  settle 
legal  rights.  Parsons  v.  Bedford,  3  Pet.  433;  Ins.  Co.  v.  Comstock,  16 
Wall.  258. 

The  only  modes  known  to  the  common  law  to  re-examine  facts  tried  by 
a  jury  are  the  granting  of  a  new  trial  by  the  court  where  the  issue  was 
tried,  or  to  which  the  record  was  properly  returnable,  or  the  award  of  a 
venire  facias  de  novo  by  the  appellate  court  for  some  error  of  law  which 
intervened  in  the  proceedings.  Parsons  v.  Bedford,  3  Pet.  433 ;  U.  S.  v. 
Wonson,  i  Gallis.  5;  Wetherbee  v.  Johnson,  14  Mass.  412;  Pa|rie  v. 
Murray,  43  Barb.  323. 

This  restriction  'is  general,  and  applies  to  all  the  departments  of  the 
Government  alike,  especially  to  the  legislative  and  judicial  branches,  so 


TRIAL  'BY    JURY.  359 

that  neither  Congress  nor  the  courts  can,  by  law  or  rules  of  practice,  deny 
to  a  citizen  the  right  thereby  secured.  Congress  has  no  power,  or  by 
delegation  of  power  to  another  body  of  its  own  creation,  to  deny  this  right 
to  a  citizen  of  a  territory.  Kleinschmidt  v.  Dunphy,  I  Mont.  Ij8. 

"Trial  by  jury"  had,  at  the  time  of  the  adoption  of  the  Constitution,  a 
fixed  legal  signification,  and  from  time  immemorial  has  meant  a  trial  by  a 
tribunal  of  twelve  men,  acting  only  upon  a  unanimous  determination. 
Unanimity  of  twelve  jurors  alone  constitutes  a  legal  verdict,  and  no  statute 
can  dispense  with  either  attribute  or  essential  of  a  verdict.  Kleinschmidt 
v.  Dunphy,  I  Mont.  118. 

This  provision  does  not  apply  to  preliminary  inquiries  which  do  not 
involve  a  trial  of  the  merits  of  the  controversy.  Ex  parte  Martin,  2  Paine, 
348. 

A  trial  by  referees  without  the  consent  of  the  parties  is  not  sanctioned 
by  the  Constitution.  U.  S.  v.  Rathbone,  2  Paine,  578. 

This  provision  does  not  apply  to  the  imposition  of  a  fine  for  a  failure  to 
comply  with  inspection  laws.  Green  v.  Savannah,  R.  M.  Charlt.  368. 

A  proceeding  for  a  judgment  on  a  forfeited  recognizance,  under  special 
statutory  provisions,  is  not  a  suit  at  common  law.  People  v.  Quigg,  59 
N.  Y.  83. 

Any  attempt  to  set  up  wager  of  law  is  utterly  inconsistent  with  the  right 
of  trial  by  jury,  so  that  the  wager  of  law  is  now  abolished.  Childress  v. 
Emory,  8  Wheat.  642. 

A  statute  may  provide  that  when  a  judgment  is  affirmed,  a  summary 
judgment  may  be  entered  against  the  surety  on  the  appeal  bond  without  a 
trial  by  jury.  Hiriart  v.  Ballou,  9  Pet.  156. 

A  nonsuit  can  not  be  ordered  in  any  case  without  the  consent  and  ac- 
quiescence of  the  plaintiff.  Elmore  v.  Grymes,  I  Pet.  469;  D'Wolf  v. 
Rabaud,  I  Pet.  476. 

The  right  of  trial  by  jury  may  be  denied  in  a  proceeding  which  is  not  a 
proceeding  at  common  law,  but  a  proceeding  under  statutory  provisions 
and  forms  specially  provided.  Miller  v.  McQuerry,  5  McLean,  469 ;  Ex 
parte  Martin,  2  Paine,  348;  Ableman  v.  Booth,  21  How.  506;  S.  C.  3  Wis. 
i,  H5.  157. 

In  a  proceeding  to  assess  damages,  which  is  neither  a  suit  at  common 
law  nor  the  trial  of  a  right  in  a  court  of  common-law  jurisdiction,  the  dam- 
ages may  be  assessed  without  the  intervention  of  a  jury.  Bonaparte  v. 
Camden  &  Am.  R.  R.  Co.  Bald.  205. 

A  statute  which  authorizes  a  judgment  by  default,  unless  the  party  on 
notice  produces  his  books  and  papers,  is  valid.  U.  S.  v.  Distillery,  8  C. 
L.  N.  57. 


360  AMENDMENTS    TO    THE    CONSTITUTION. 

A  statute  appointing  commissioners  to  determine  titles  and  making 
their  award  final,  unless  a  suit  is  brought  within  a  certain  period,  does  not 
take  away  the  right  of  trial  by  jury.  Barker  v.  Jackson,  i  Paine,  559. 

This  provision  does  not  apply  to  a  proceeding  to  annul  the  license  of  a 
pilot  for  neglect  of  duty.  Low  v.  Commissioners,  R.  M.  Charlt.  302. 

When  there  is  a  default  in  a  proceeding  under  the  confiscation  laws,  in 
a  seizure  on  land,  there  is  no  fact  to  be  ascertained,  and  no  jury  trial  is 
necessary.  Miller  v.  U.  S.  1 1  Wall.  268. 

This  provision  does  not  embrace  the  established  exclusive  jurisdiction 
of  courts  of  equity,  nor  that  which  they  have  exercised  as  concurrent  with 
courts  of  law,  but  is  limited  to  rights  and  remedies  peculiarly  legal  in  their 
nature,  and  such  as  it  is  proper  to  assert  in  courts  of  law  and  by  the  appro- 
priate modes  and  proceedings  of  courts  of  law.  Shields  v.  Thomas,  18 
How.  253;  Kleinschmidt  v.  Dunphy,  I  Mont.  118;  Ely  v.  M.  &  B.  Manuf. 
Co.  4  Fish.  64 ;  Motts  v.  Bennett,  2  Fish.  642. 

The  power  to  issue  an  injunction  in  chancery,  in  its  legitimate  use,  does 
not  impair,  supersede  or  prevent  a  trial  by  jury,  where  it  has  ever  existed. 
Woodworth  v.  Rogers,  3  W.  &  M.  135. 

A  court  of  equity  can  not  be  authorized  to  award  damages  or  compen- 
sation for  the  breach  of  a  contract  for  the  sale  and  delivery  of  personal 
property.  Scott  v.  Billgerry,  40  Miss.  119. 

This  is  not  an  inhibition  upon  the  mode  of  trial  of  suits  which  are  not 
exclusively  suits  at  common  law.  It  refers  to  suits  at  common  law  alone, 
and  does  not  embrace  suits  in  admiralty.  It  does  not,  therefore,  prohibit 
suits  in  admiralty,  although  the  courts  of  common  law  have  a  concurrent 
jurisdiction.  Waring  v.  Clarke,  5  How.  441;  U.  S.  v.  Bright,  Bright.  19; 
The  Huntress,  2  Ware,  89  ;  vide  Bains  v.  The  James  Catherine,  Bald.  544. 

An  information  in  rent  to  enforce  a  penalty  for  a  violation  of  the  laws 
of  the  United  States,  which  occurs  on  navigable  waters,  in  a  case  of  admi- 
ralty jurisdiction,  is  not  a  suit  at  common  law  but  an  admiralty  proceeding, 
where  the  trial  is  never  by  jury.  U.  S.  v.  La  Vengeance,  3  Dall.  297;  The 
Margaret,  9  Wheat.  421  ;  U.  S.  v.  Irma,  12  I.  R.  R.  42;  U.  S.  v.  The 
Betsey,  4  Cranch,  443 ;  Whelan  v.  U.  S.  7  Cranch,  112;  U.  S.  v.  The 
Queen,  4  Ben.  237;  Clark  v.  U.  S.  2  Wash.  519. 

If  the  seizure  is  made  on  land,  the  claimant  in  an  information  in  rent, 
is  entitled  to  a  trial  by  jury.  U.  S.  v.  Fourteen  Packages,  Gilp.  235. 

A  proceeding  in  rem,  under  the  internal  revenue  laws,  is  a  suit  at  com- 
mon law  within  the  meaning  of  this  article,  and  the  party  is  entitled  to  a 
jury  trial.  U.  S.  v.  Distillery,  8  C.  L.  N.  57. 

In  a  proceeding  in  rem,  to  enforce  a  forfeiture  for  a  violation  of  the 
internal  revenue  laws,  the  claimant  is  entitled  to  a  jury  trial.  U.  S.  v.  130 
Bbls.  i  Bond,  587. 


EXCESSIVE    BAIL.  361 

This  provision  applies  to  tribunals  established  under  a  provisional  gov- 
ernment. Scott  v.  Billgerry,  40  Miss.  119. 

A  territorial  statute  prohibiting  a  trial  by  jury  in  actions  at  law,  where 
the  amount  involved  exceeds  twenty  dollars,  is  void.  Webster  v.  Reid,  1 1 
How.  437  ;  s.  C.  Morris,  467;  Whallon  v.  Bancroft,  4  Minn.  109. 

A  territorial  statute  allowing  a  verdict  to  be  rendered  upon  the  agree- 
ment of  three-fourths  of  the  jurors  is  void.  Kleinschmidt  v.  Dunphy,  I 
Mont.  118. 

This  provision  does  not  prevent  a  territorial  legislature  from  extending 
the  right  of  jury  trial  to  cases  at  law  involving  less  than  twenty  dollars. 
Whallon  v.  Bancroft,  4  Minn.  109. 

Had  the  terms  been  that  "  the  trial  by  jury  shall  be  preserved,"  it  might 
have  been  contended  that  they  were  imperative  and  could  not  be  dispensed 
with.  But  the  words  are  that  "the  right  of  trial  by  jury  shall  be  pre- 
served," which  place  it  on  the  foot  of  a  lex  pro  se  introducta,  and  the 
benefit  of  it  may  therefore  be  relinquished.  Bank  v.  Okely,  4  Wheat.  235 ; 
U.  S.  v.  Rathbone,  2  Paine,  578;  Parsons  v.  Armor,  3  Pet.  415. 

Whenever  a  party  is  concluded  by  his  own  act,  and  held  to  have  waived 
any  right  or  privilege,  such  act  should  not  be  left  doubtful,  but  should 
be  plain  and  explicit.  Every  reasonable  presumption  should  be  made 
against  the  waiver,  especially  when  it  relates  to  a  right  or  privilege  deemed 
so  valuable  as  to  be  secured  by  the  Constitution.  U.  S.  v.  Rathbone,  2 
Paine,  578. 

The  second  clause  is  a  substantial  and  independent  clause,  and  applies 
to  cases  of  Federal  cognizance  coming  into  the  Federal  courts  from  the 
State  courts.  Justices  v.  Murray,  9  Wall.  274. 


ARTICLE  VIII. 

i.  Excessive  bail  shall  not  be  required,  nor  exces- 
sive fines  imposed,  nor  cruel  and  unusual  punishments 
inflicted. 

This  amendment  was  intended  only  for  Congress  and  the  Federal 
courts,  and  does  not  extend  to  the  State  governments,  which  are  left  at 
liberty  to  regulate  their  own  criminal  codes  as  they  may  deem  proper, 
without  reference  to  the  laws  or  Constitution  of  the  United  States.  James 
it.  Comm.  12  S.  &  R.  220;  Barker  v.  People,  3  Cow.  686. 

The  Supreme  Court  can  not,  on  a  writ  of  habeas  corpus,  revise  the  sen- 
tence of  an  inferior  court  in  a  criminal  case,  on  the  ground  that  the  fine  im- 
posed was  excessive.  Ex  parte  Tobias  Watkins,  7  Pet.  568. 


362  AMENDMENTS    TO    THE    CONSTITUTION. 

ARTICLE  IX. 

i.  The  enumeration  in  the  Constitution  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people. 

ARTICLE  X. 

i.  The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  people. 

N 

This  amendment  omits  the  word  "expressly,"  contained  in  the  articles 

of  confederation,  thus  leaving  the  question  whether  the  particular  power 
which  may  become  the  subject  of  contest  has  been  delegated  to  the  one 
government  or  prohibited  to  the  other,  to  depend  on  a  fair  construction  of 
the  whole  instrument.  The  men  who  drew  and  adopted  this  amendment 
had  experienced  the  embarrassments  resulting  from  the  insertion  of  this 
word  in  the  articles  of  confederation,  and  probably  omitted  it  to  avoid 
those  embarrassments.  McCulloch  v.  State,  4  Wheat.  316;  George  ^. 
Concord,  45  N.  H.  434. 

Under  the  Constitution  all  possible  powers  must  be  found  in  the  Fed- 
eral Government  or  the  States,  or  else  they  remain  among  those  reserved 
rights  which  the  people  have  retained,  as  not  essential  to  be  vested  in  any 
government.  That  which  is  forbidden  to  the  States  is  not  necessarily  in 
the  Federal  Government,  because  it  may  be  among  the  reserved  powers. 
But  if  that  which  is  essential  to  government  is  prohibited  to  one,  it  must,  of 
necessity,  be  found  in  the  other,  and  a  prohibition  in  such  a  case  on  the  one 
side  is  equivalent  to  a  grant  on  the  other.  Van  Husan  v.  Kanouse,  1 3 
Mich.  303. 

The  Government  can  claim  no  powers  which  are  not  granted  to  it  by 
the  Constitution,  and  the  powers  actually  granted  must  be  such  as  are  ex- 
pressly given,  or  given  by  necessary  'implication.  Martin  v.  Hunter,  I 
Wheat.  304;  S.  C.  4  Munf.  i. 

The  principle  that  the  Govefhment  is  a  government  of  limited  powers, 
is  misapplied  when  an  attempt  is  made  to  use  it  to  restrict  the  right  to  ex- 
ercise a  power  expressly  given.  It  is  of  value  when  the  inquiry  is  whether 
a  power  has  been  conferred,  but  of  no  avail  to  strip  a  power  given,  in  gen- 
eral terms,  of  any  of  its  attributes.  The  powers  of  the  Federal  Government 
are  limited  in  number,  not  in  their  nature.  A  power  vested  in  Congress  is 
as  ample  as  it  would  be  if  possessed  by  any  other  legislature.  It  is  not 
enlarged  or  diminished  by  the  character  of  its  possessor.  Kneedler  v. 
Lane,  45  Penn.  238  ;  S.  C.  3  Grant,  465. 


STATE    POWERS.  363 

The  United  States  is  a  government,  and  consequently  a  body  politic 
and  corporate,  capable  of  attaining  the  objects  for  which  it  was  created  by 
the  means  which  are  necessary  for  their  attainment.  It  requires  no  argu- 
ment to  prove  that  one  of  the  means  by  which  some  of  these  objects  are  to 
be  accomplished  is  contract.  The  Government,  therefore,  is  capable  of 
contracting,  and  its  contracts  may  be  made  in  the  name  of  the  United 
States.  The  capacity  of  the  United  States  to  contract  is  coextensive  with 
the  powers  and  duties  of  government.  Every  contract  which  subserves  to 
the  performance  of  a  duty  may  be  rightfully  made.  U.  S.  v.  Maurice,  2 
Brock.  96. 

The  'Federal  Government,  under  the  Constitution,  has  no  power  to  im- 
pose ort  a  State  officer,  as  such,  any  duty  whatever,  and  compel  him  to  per- 
form it ;  for  if  it  possessed  this  power  it  might  overload  the  officer  with 
duties  which  would  fill  up  all  his  time,  and  disable  him  from  performing  his 
obligations  to  the  State,  and  might  impose  on  him  duties  of  a  character  in- 
compatible with  the  rank  and  dignity  to  which  he  was  elevated  by  the  State. 
Comm.  v.  Dennison,  24  How.  66. 

Prohibitions  on  the  States  are  not  to  be  enlarged  by  construction.  An- 
derson v.  Baker,  23  Md.  531. 

When  the  American  people  created  a  national  legislature,  with  certain 
enumerated  powers,  it  was  neither  necessary  nor  proper  to  define  the  pow- 
ers retained  by  the  States.  These  powers  proceed  not  from  the  people  of 
America,  but  from  the  people  of  the  several  States,  and  remain,  after  the 
adoption  of  the  Constitution,  what  they  were  before,  except  so  far  as  they 
may  be  abridged  by  that  instrument.  Sturges  v.  Crowninshield,  4  Wheat. 
122. 

The.  Constitution  was  not  intended  to  furnish  the  corrective  for  every 
abuse  of  power  which  may  be  committed  by  State  governments.  The  in- 
terest, wisdom  and  justice  of  the  representative  body,  and  its  relations  with 
its  constituents,  furnish  the  only  security  against  unwise  legislation,  where 
there  is  no  contract.  Providence  Bank  v.  Billings,  4  Pet.  514. 

The  power  to  direct  and  regulate  the  mode  of  selling  by  citizens  of  the 
State,  and  within  its  own  territories,  is  one  of  the  acknowledged  powers  of 
the  State  governments.  It  is  in  virtue  of  this  power  that  all  laws  respect- 
ing hawkers,  peddlers,  auctioneers  and  others  are  made.  Comm.  v.  Kim- 
ball,  41  Mass.  359. 

There  is  nothing  in  the  Constitution  which  forbids  the  legislature  of  a 
State  to  exercise  judicial  functions.  Satterlee  v.  Matthewson,  2  Pet.  380. 

The  establishing  courts  of  justice,  the  appointment  of  judges,  and  the 
making  regulations  for  the  administration  of  justice  within  each  State  ac- 
cording to  its  laws,  on  all  subjects  not  intrusted  to  the  Federal  Government, 


364  AMENDMENTS    TO    THE    CONSTITUTION. 

are  the  peculiar  and  exclusive  province  and  duty  of  the  State  legislatures. 
Calder  v.  Bull,  3  Dall.  386;  s.  C.  2  Root,  350;  Lapsley  v.  Brashears,  4 
Litt.  47. 

There  is  no  constitutional  objection  to  the  exercise  of  the  power  to 
make  a  binding  contract  by  a  State.  It  necessarily  exists  in  the  sovereignty. 
A  denial  of  this  is  a  denial  of  State  sovereignty.  It  takes  from  the  State 
a  power  essential  to  the-  discharge  of  its  functions  as  sovereign.  If  it  does 
not  possess  the  attribute,  it  could  not  communicate  it  to  others.  There  is 
no  power  possessed  by  it  more  essential  than  this.  Through  the  instru- 
mentality of  contracts,  the  machinery  of  government  is  carried  on.  Money 
is  borrowed  and  obligations  given  for  payment.  Contracts  are  made  with 
individuals,  who  give  bonds  to  the  State.  State  Bank  ?/.  Knoop,  16  How. 
369 ;  Ohio  Trust  Co.  v.  Debolt,  16  How.  416 ;  S.  C.  i  Ohio  St.  563;  Boston 
£  L.  R.  R.  Co.  v.  Salem  &  L.  R.  R.  Co.  68  Mass.  I. 

The  power  to  regulate  suffrage  in  a  State,  and  to  determine  who  shall 
or  shall  not  be  a  voter,  belongs  exclusively  to  the  State  itself.  The  right 
of  suffrage  at  a  State  election  is  a  State  right,  a  franchise  conferrable  only 
by  the  State,  which  Congress  can  neither  give  nor  take  away.  Huber  v. 
Reily,  53  Penn.  112. 

Every  State  has  the  right  to  determine  the  status  or  domestic  and  social 
condition  of  the  persons  domiciled  within  its  territory,  except  in  so  far  as 
the  powers  of  the  States  in  this  respect  are  restrained  or  duties  and  obliga- 
tions imposed  upon  them  by  the  Constitution.  Strader  v.  Graham,  10 
How.  82. 

The  several  State  legislatures  retain  all  the  powers  of  legislation  dele- 
gated to  them  by  the  State  constitutions  which  are  not  expressly  taken 
away  by  the  Constitution  of  the  United  States.  Calder  v.  Bull,  3  Dall. 
386;  S.  c.  2  Root,  350;  Comm.  v.  Kimball,  41  Mass.  359;  People  v. 
Naglee,  I  Cal.  231. 

The  Constitution  makes  no  provision  for  protecting  the  citizens  of  the 
respective  States  in  their  religious  liberties.  This  is  left  to  the  State  con- 
stitutions and  laws.  There  is  no  inhibition,  in  this  respect,  imposed  by  the 
Constitution  on  the  States.  Permoli  v.  Municipality,  3  How.  589. 

The  several  States,  for  all  purposes  except  those  of  a  national  character 
embraced  in  the  Constitution,  are  foreign  to  and  independent  of  each  other. 
Buckner  v.  Finley,  2  Pet.  586;  Bank  v.  Daniel,  12  Pet.  33;  Augusta  v. 
Earle,  13  Pet.  520;  Dodge  v.  Woolsey,  18  How.  350. 


SUITS    AGAINST    STATES.  365 

[The  following  amendment  was  proposed  at  the  second  session  of  the 
third  Congress.  I  Stat.  22.] 

ARTICLE   XI. 

i.  The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State. 

There  is  nothing  in  the  Constitution  to  deprive  a  State  court  of  the 
jurisdiction  over  suits  against  a  State  which  it  possessed  before  the  Con- 
stitution was  adopted.  Garr  v.  Bright,  I  Barb.  Ch.  157. 

This  amendment  applied  to  past  as  well  as  future  cases.  Hollings- 
worth  v.  Virginia,  3  Dall.  378. 

The  mere  suggestion  of  title  in  a  State  to  property  in  the  possession  of 
an  individual,  does  not  arrest  the  proceedings  or  prevent  the  court  from 
looking  into  the  suggestion  and  examining  the  validity  of  the  title.  U.  S. 
v.  Peters,  5  Cranch,  1 1 5. 

This  amendment  is,  of  necessity,  limited  to  those  suits  in  which  a  State 
is  a  party  on  the  record.  Osborn  v.  Bank,  9  Wheat.  738 ;  U.  S.  v.  Peters, 
5  Cranch,  115;  Davis  v.  Gray,  16  Wall.  203;  U.  S.  v.  Bright,  Bright.  19; 
Olmstead's  Case,  Bright.  9 ;  Swasey  v.  N.  C.  R.  R.  Co.  I  Hughes,  i ;  s.  c. 
71  N.  C.  571. 

By  a  suit  commenced  by  an  individual  against  a  State,  is  meant  process 
sued  out  by  that  individual  against  the  State,  for  the  purpose  of  establishing 
some  claim  against  it  by  the  judgment  of  a  court,  and  the  prosecution  of 
that  suit  is  its  continuance.  Cohens  v.  Virginia,  6  Wheat.  264. 

A  suit  is  the  prosecution  of  some  demand  in  a  court  of  justice.  To 
commence  a  suit  is  to  demand  something  by  the  institution  of  process  in  a 
court  of  just'ce,  and  to  prosecute  the  suit  is,  according  to  the  common  ac- 
ceptation of  language,  to  continue  that  demand.  Cohens  v.  Virginia,  6 
Wheat.  264. 

The  amendment  was  intended  for  those  cases,  and  for  those  only,  in 
which  some  demand  against  a  State  is  made  by  an  individual  in  the  Federal 
courts.  Cohens  v.  Virginia,  6  Wheat.  264. 

A  writ  of  error  prosecuted  by  a  citizen  against  his  own  State,  is  .not 
within  the  prohibition.  Cohens  v.  Virginia,  6  Wheat.  264. 

Where  a  State  obtains  a  judgment  against  an  individual,  and  the  court 
rendering  such  judgment  overrules  a  defense  set  up  under  the  Constitution 


366  AMENDMENTS    TO    THE    CONSTITUTION. 

or  laws  of  the  United  States,  the  transfer  of  the  record  into  the  Supreme 
Court  for  the  sole  purpose  of  inquiring  whether  the  judgment  violates  the 
Constitution  or  laws  of  the  United  States,  can  not  be  denominated  a  suit 
commenced  or  prosecuted  against  the  State  whose  judgment  is  so  far  re- 
examined.  Nothing  is  demanded  from  the  State.  No  claim  against  it  of 
any  description  is  asserted  or  prosecuted.  Cohens  v.  Virginia,  6  Wheat. 
264. 

The  Federal  courts  may  entertain  a  suit  against  a  corporation  although 
a  State  is  one  of  the  corporators.  Bank  v.  Planters'  Bank,  9  Wheat.  904 ; 
Louisville  R.  R.  Co.  V.  Letson,  2  How.  497. 

The  Federal  courts  may  entertain  a  suit  against  a  corporation  although 
a  State  is  the  sole  proprietor  of  the  stock.  Bank?/.  Wister,  2  Pet.  318. 

Where  the  chief  magistrate  of  a  State  is  sued  not  by  his  name  but  by 
his  style  of  office,  and  the  claim  made  upon  him  is  entirely  in  his  official 
character,  the  State  itself  may  be  considered  as  a  party  on  the  record. 
Governor  77.  Madrazo,  I  Pet.  no. 

An  independent  foreign  sovereign  can  not  be  sued,  and  does  not 
appear  in  court.  But  a  friend  of  the  court  comes  in,  and  by  suggestion 
gives  it  to  understand  that  his  interests  are  involved  in  the  controversy. 
The  interests  of  the  sovereign  in  such  a  case,  and  in  every  other  where  he 
chooses  to  assert  them  under  the  name  of  the  real  party  to  the  cause,  are 
as  well  defended  as  if  he  were  a  party  to  the  record.  Osborn  v.  Bank,  9 
Wheat.  738. 

The  right  of  a  State  to  assert  as  plaintiff  any  interest  it  may  have  in  a 
subject  which  forms  the  matter  of  controversy  between  individuals  in  a 
Federal  court  is  not  affected  by  this  amendment,  nor  can  it  be  so  construed 
as  to  oust  the  court  of  jurisdiction  should  such  claim  be  suggested.  The 
amendment  simply  provides  that  no  suit  shall  be  commenced  or  prose- 
cuted against  a  State.  The  State  can  not  be  made  a  defendant  to  any  suit 
brought  by  an  individual.  U.  S.  v.  Peters,  5  Cranch,  115;  Osborn  v. 
Bank,  9  Wheat.  738. 

A  mere  suggestion  of  title  in  a  State  to  property  in  the  possession  of 
an  individual,  will  not  arrest  proceedings  in  a  Federal  court  between  indi- 
viduals, and  prevent  its  looking  into  the  suggestion  and  examining  the 
validity  of  the  title.  U.  S.  v.  Peters,  5  Cranch,  115;  Osborn  v.  Bank,  9 
Wheat.  738. 

If  the  Federal  court  decides  that  the  State  has  no  title  or  claim  to  prop- 
erty in  a  suit  between  individuals,  the  State  has  no  constitutional  right  to 
resist  the  legal  process  which  may  be  directed  in  the  cause.  U.  S.  v. 
Peters,  5  Cranch,  115. 

A  Federal  court  has  no  power  to  compel  the  officers  of  a  State  to  exe- 
cute its  laws.  To  do  so,  would  be  to  substitute  the  court  for  the  executive 


ELECTORS.  367 

officers  of  the  State,  to  supplant  their  views  of  duty  and  the  obligations 
imposed  upon  them  by  their  official  oaths  by  the  discretion  of  the  court 
and  its  official  oath.  In  other  words,  it  would  be  an  undertaking  on  the 
part  of  the  court  to  administer  the  State  Government  ,.  This  the  court  has 
no  power  to  do.  Macauley  v.  Kellogg,  2  Woods,  13  ;  S.  C.  I  Cent.  L.  J. 
164. 

[The  three  following  sections  were  proposed  as  amendments  at  the  first  ses- 
sion of  the  eighth  Congress.    I  Stat.  22.] 

ARTICLE  XII. 

i.  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Vice-President, 
one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves  ;  they  shall  name  in  their 
ballots  the  person  voted  for  as  President,  and  in  dis- 
tinct ballots  the  person  voted  for  as  Vice-President ; 
and  they  shall  make  distinct  lists  of  all  persons  voted 
for  as  President,  and  of  all  persons  voted  for  as  Vice- 
President,  and  of  the  number  of  votes  for  each,  which 
lists  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  Government  of  the  United  States, 
directed  to  the  president  of  the  Senate  ;  the  president 
of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and 
the  votes  shall  then  be  counted  ;  the  person  having  the 
greatest  number  of  votes  for  President,  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed  ;  and  if  no  person  have 
such  majority,  then  from  the  persons  having  the  high- 
est numbers,  not  exceeding  three,  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives 
shall  choose  immediately,  by  ballot,  the  President.  But 
in  choosing  the  President,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one 
vote  ;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  States, 
and  a  majority  of  all  the  States  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall 
not  choose  a  President,  whenever  the  right  of  choice 


368  AMENDMENTS    TO    THE    CONSTITUTION. 

shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  Vice-President  shall 
act  as  President,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  President. 


Fraud  and  misconduct  on  the  part  of  the  State  authorities,  constituted 
for  the  very  purpose  of  declaring  the  final  will  of  the  State,  is  not  a  sub- 
ject over  which  the  two  Houses  of  Congress  have  jurisdiction  to  institute 
an  examination.  Electoral  Count. 

The  utmost  that  the  two  Houses  of  Congress  can  do,  is  to  ascertain 
whether  the  State  has  made  the  appointment  according  to  the  form  pre- 
scribed by  its  laws.  Electoral  Count. 

If  the  State  is  in  the  enjoyment  of  its  proper  relations  to  the  Federal 
Government,  the  two  Houses  can  not  inquire  whether  the  tumults  and  dis- 
orders existing  therein  at  the  time  of  the  election,  or  the  presence  of 
troops  sent  there  by  the  President  for  the  purpose  of  preserving  the  peace, 
had  such  an  influence  as  to  render  the  election  void.  Electoral  Count. 

Congress  can  not  institute  a  scrutiny  into  the  appointment  of  electors 
by  .a  State.  While  the  two  Houses  of  Congress  are  authorized  to  canvass 
the  electoral  vote,  no  authority  is  given  them  to  canvass  the  election  of  the 
electors  themselves  on  the  suggestion  of  fraud,  or  for  any  other  cause. 
Electoral  Count. 

The  two  Houses  of  Congress  may  inquire  whether  the  certificate  of 
the  executive  is  genuine,  whether  it  is  plainly  false,  and  whether  it  con- 
tains a  clear  mistake  of  fact.  Electoral  Count. 

The  powers  of  the  president  of  the  Senate  are  merely  ministerial.  He 
is  not  invested  with  any  authority  for  making  any  investigation  outside  of 
the  joint  meeting  of  the  two  Houses.  He  can  not  send  for  persons  or 
papers.  He  is  utterly  without  the  means  or  power  to  do  more  than  to  in- 
spect the  documents  sent  to  him,  and  he  can  not  inspect  them  until  he 
opens  them  in  the  presence  of  the  two  Houses.  Electoral  Count. 


2.  The  person  having  the  greatest  number  of  votes 
as  Vice-President,  shall  be  the  Vice-President,  if  such 
number  -be  a  majority  of  the  whole  number  of  electors 
appointed  ;  and  if  no  person  have  a  majority,  then 
from  the  two  highest  numbers  on  the  list,  the  Senate 
shall  choose  the  Vice-President ;  a  quorum  for  the  pur- 
pose shall  consist  of  two-thirds  of  the  whole  number 


SLAVERY.  369 

of  Senators,  and  a  majority  of  the  whole  number  shall 
be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the 
office  of  President,  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States. 


[The  following  amendment  was  proposed  at  the  second  session  of  the 
thirty-eighth  Congress.  13  Stat.  774.] 

ARTICLE  XIII. 

SEC.  i.  Neither  slavery  nor  involuntary  servitude^ 
except  as  a  punishment  for  crime,  whereof  the  party 
shall  have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  juris- 
diction. 

SEC.  2.  Congress  shall  have  power  to  enforce  this; 
article  by  appropriate  legislation. 

Contracts  relating  to  slaves,  if  valid  when  made,  are  not  impaired  by 
this  amendment.  Osborne  v.  Nicholson,  13  Wall.  654;  s.  C.  I  Dill.  219  ; 
Boyce  v.  Tabb,  18  Wall.  546;  Hall  v.  Keese,  31  Tex.  504  ;  Roundtree  -v. 
Baker,  52  111.  241  ;  McElvain  v.  Mudd,  44  Ala.  48  ;  Calhoun  z/.  Calhoun, 
2  Rich.  N.  S.  283  ;  White  v.  Hart,  13  Wall.  646;  S.  C.  39  Geo.  306  ;  con- 
tra, Wainwright  v.  Bridges,  19  La.  Ann.  234;  Austin  v.  Sandel,  19  La. 
Ann.  309 ;  Halley  v.  Hoeffner,  19  La.  Ann.  518  ;  Lytle  v.  Whicher,  21  La. 
Ann.  182;  Gautden  v.  Stoddard,  41  660.329;  Cherry  v.  Jones,  41  Geo. 
579  ;  Rodrigues  z/.  Bienvenu,  22  La.  Ann.  300;  Succession  of  Woodward, 
22  La.  Ann.  305. 

The  object  of  this  provision  was  not  only  to  effect  the  emancipation 
of  all  persons  then  held  in  slavery,  but  also  to  forever  thereafter  deprive 
both  Congress  and  the  respective  States  of  any  and  all  power  to  reduce 
either  the  persons  so  emancipated,  or  any  others  within  the  jurisdiction  of 
the  United  States,  to  the  condition  of  slavery  or  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted.  To  secure  personal  freedom  to  all  within  the  purview  of  its 
provisions  was  the  first  great  and  leading  object  of  the  amendment.  Peo- 
ple v,  Washington,  38  Cal.  658. 

Personal  security  and  the  right  to  acquire  and  enjoy  private  property,  are 
powerful  auxiliaries  to  the  maintenance  of  personal  liberty.     The  continued 
enjoyment  of  personal  liberty  can  not  well  be  assured  without  the  enjoy- 
24 


37O  AMENDMENTS    TO    THE    CONSTITUTION. 

ment  of  personal  security.  The  right  to  acquire  and  enjoy  private  property 
is  necessary  to  give  that  independence  and  freedom  from  want  essential 
to  the  full  enjoyment  of  personal  liberty.  Whatever,  therefore,  tends  to 
maintain  and  assure  to  a  person  personal  security,  and  to  protect  him  in 
the  acquisition  and  enjoyment  of  private  property,  aids  in  the  maintenance 
of  personal  liberty.  People  V.  Washington,  38  Cal.  658  ;  Smith  v.  Moody, 
26  Ind.  299. 

The  establishment  of  different  rules  as  to  the  competency  of  evidence 
applicable  to  different  classes  of  persons,  may  tend  to  the  advantage  of  one 
class  and  to  the  oppression  and  encroachment  upon  the  personal  liberty  of 
another.  A  law  providing  that  the  same  rule  of  evidence  shall  apply  to 
both  classes,  placing  the  class  likely  to  be  reduced  to  servitude  upon  an 
equal  footing  with  the  other,  in  respect  to  the  right  to  testify  as  to  the  en- 
croachment upon  their  personal  liberty,  strongly  conduces  to  the  enforce- 
ment of  this  amendment.  People  v.  Washington,  38  Cal.  658  ;  U.  S.  v. 
Rhodes,  i  Abb.  C.  C.  28. 

Legislation  which  practically  tends  to  facilitate  the  securing  to  all, 
through  the  aid  of  the  judicial  and  executive  departments  of  the  govern- 
ment, the  full  enjoyment  of  personal  freedom,  is  appropriate.  People  v. 
Washington,  38  Cal.  658. 

A  law  which  only  permits  the  same  class  of  persons  to  testify  against  a 
black  man  as  are  allowed  to  testify  against  a  white  man,  in  a  matter  where 
personal  liberty  is  concerned,  tends  to  enforce  this  amendment.  People  v. 
Washington,  38  Cal.  658 ;  contra,  Bowlin  v.  Comm.  2  Bush,  5. 

Colored  children  may  be  excluded  from  the  schools  for  white  children, 
where  separate  schools  are  provided  for  them.  Ward  v.  Flood,  48  Cal.  36 ; 
Cory  2/.  Carter,  48  Ind.  327. 

The  utmost  legal  effect  of  this  clause  is  to  declare  the  colored  as  free  as 
the  white  race  in  the  United  States.  It  certainly  gave  the  colored  race 
nothing  more  than  freedom.  It  did  not  elevate  them  to  social  or  political 
equality  with  the  white  race.  It  neither  gave,  nor  aimed  to  give  them,  in 
defiance  of  State  laws,  all  the  rights  of  the  white  race,  but  left  them  equally 
free  in  all  the  States,  and  equally  subject  to  State  jurisdiction  and  State 
laws.  Bowlin  v.  Comm.  2  Bush,  5. 

"  Power  to  enforce  this  article  by  appropriate  legislation,"  imports  noth- 
ing more  than  to  uphold  the  emancipating  section  and  prevent  a  violation 
of  the  contemplated  liberty  of  the  enfranchised  race.  It  does  not  mean  that 
Congress  shall  have  power  to  legislate  over  their  civil  rights  and  remedies 
in  the  States,  any  more  than  over  those  of  all  other  citizens.  Bowlin  v. 
Comm.  2  Bush,  5. 

This  is  not  merely  a  prohibition  against  the  passage  or  enforcement  of 


CITIZENSHIP.  371 

any  law  inflicting  or  establishing  slavery  or  involuntary  servitude,  but  is  a 
positive  declaration  that  slavery  shall  not  exist.  It  prohibits  the  thing.  In 
the  enforcement  of  this  article,  therefore,  Congress  has  to  deal  with  the  sub- 
ject-matter. U.  S.  v.  Cruikshank,  I  Woods,  308  ;  S.  C.  92  U.  S.  542. 

That  a  personal  servitude  was  meant  is  proved  by  the  use  of  the  word 
*'  involuntary,"  which  can  only  apply  to  human  beings.  The  exception  of 
servitude  as  a  punishment  for  crime  gives  an  idea  of  the  class  of  servitudes 
that  is  meant.  The  word  servitude  is  of  larger  meaning  than  slavery,  as  the 
latter  is  popularly  understood,  and  the  obvious  purpose  was  to  forbid  all 
shades  and  conditions  of  African  slavery.  Slaughter  House  Cases,  16 
Wall.  36. 

This  clause  does  not  authorize  Congress  to  pass  laws  for  the  punish- 
ment of  ordinary  crimes  and  offenses  against  persons  of  the  colored  race,  or 
any  other  race.  That  belongs  to  the  State  government  alone.  All  ordi- 
nary murders,  robberies,  assaults,  thefts  and  offenses  whatsoever,  are  cog- 
nizable only  in  the  State  courts,  unless  the  State  should  deny  to  the  class  of 
persons  referred  to  the  equal  protection  of  the  laws.  U.  S.  v.  Cruikshank, 
i  Woods,  308 ;  s.  c.  92  U.  S.  542. 


[By  a  joint  resolution  adopted  at  the  first  session  of  the  thirty-ninth  Congress 
(two  thirds  of  both  houses  concurring),  the  following  article  was  proposed  to  the 
legislatures  of  the  several  States  as  an  amendment  to  the  Constitution  of  the 
United  States,  to  become  a  part  of  the  Constitution  when  ratified  by  the  legisla- 
tures of  three-fourths  of  the  States.  15  Stat.  706.] 

ARTICLE   XIV. 

SEC.  i.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States,  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction,  the  equal  protection  of  the  laws. 

SEC.  2.  Representatives  shall  be  apportioned  among 
the  several  States  according  to  their  respective  num- 
bers, counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States,  rep- 


372  AMENDMENTS    TO    THE    CONSTITUTION. 

resentatives  in  Congress,  the  executive  and  judicial 
officers  of  a  State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  rep- 
resentation therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 

SEC.  3.  No  person  shall  be  a  senator  or  representa- 
tive in  Congress,  or  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under 
the  United  States,  or  under  any  State,  who,  having  pre- 
viously taken  an  oath  as  a  member  of  Congress,  or  as 
an  officer  of  the  United  States,  or  as  a  member  of  any 
State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  ene- 
mies thereof ;  but  Congress  may,  by  a  vote  of  two- 
thirds  of  each  house,  remove  such  disability. 

SEC.  4.  The  validity  of  the  public  debt  of  the  United 
States  authorized  by  law,  including  debts  incurred  for 
payment  of  pensions  and  bounties  for  services  in  sup- 
pressing insurrection  or  rebellion,  shall  not  be  ques- 
tioned. But  neither  the  United  States,  nor  any  State, 
shall  assume  or  pay  any  debt  or  obligation  incurred  in 
aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  .the  loss  or  emancipation  of 
any  slave  ;  but  all  such  debts,  obligations,  and  claims, 
shall  be  held  illegal  and  void. 

SEC.  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

Citizenship. 

This  clause  declares  that  persons  may  be  citizens  of  the  United  States 
without  regard  to  their  citizenship  of  a  particular  State,  and  overturns  the 
Dred  Scott  decision,  by  making  all  persons  born  within  the  United  States, 
and  subject  to  its  jurisdiction,  citizens  of  the  United  States.  The  phrase 


IMMUNITIES.  373 

"'  subject  to  its  jurisdiction,"  was  intended  to  exclude  from  its  operation 
children  of  ministers,  consuls  and  citizens  or  subjects  of  foreign  States 
born  within  the  United  States.  Slaughter  House  Cases,  16  Wall.  36. 

No  white  person  born  within  the  limits  of  the  United  States,  and  sub- 
ject to  its  jurisdiction,  or  born  without  those  limits,  and  subsequently  nat- 
uralized under  its  laws,  owes  the  status  of  citizenship  to  this  amendment. 
Van  Valkenburg  v.  Brown,  43  Cal.  43. 

Slaves  who  escaped  to  Canada  before  the  adoption  of  the  amendment, 
where  they  now  reside,  are  not  citizens  of  the  United  States.  Hedgman 
v.  Board,  26  Mich.  51. 

The  child  of  slaves  who  escaped  to  Canada,  where  he  was  born,  is  not 
a  citizen  of  the  United  States.  Hedgman  v.  Board,  26  Mich.  51. 

This  clause  evidently  refers  to  natural  persons.  The  birth  referred  to 
is  a  natural  one,  and  not  artificial  nor  procuced  in  some  legislative  body. 
People  v.  C.  &  A.  R.  R.  Co.  6  C.  L.  N.  280. 

An  Indian  whose  tribe  has  ceased  to  maintain  its  tribal  integrity,  and 
who  is  taxed  by  the  State,  is  subject  to  the  jurisdiction  of  the  United  States, 
and  a  citizen  thereof.  U.  S.  v.  Elm,  23  I.  R.  R.  419. 

Immunities. 

The  words  "citizen"  and  "person"  are  synonymous  terms,  and  by 
the  term  person  is  meant  a  natural  person,  a  citizen  of  the  United  States, 
and  of  the  State  in  which  he  may  reside.  People  v.  C.  &  A.  R.  R.  Co.  6 
C.  L.  N.  280. 

A  corporation  is  not  a  citizen  of  the  United  States,  as  that  term  is 
used  in  the  amendment.  Ins.  Co.  v.  New  Orleans,  I  Woods,  85. 

A  corporation  is  not  a  person  within  the  meaning  of  this  amendment. 
Ins.  Co.  v.  New  Orleans,  i  Woods,  85. 

Women  may  be  citizens  of  the  United  States.  Minors.  Happersett,  21 
Wall.  162. 

The  amendment  did  not  add  to  the  privileges  or  immunities  of  a  citizen 
as  they  existed  at  the  time  it  was  adopted.  Minor  V.  Happersett,  21  Wall. 
162. 

It  is  only  the  privileges  and  immunities  of  citizens  of  the  United  States 
which  are  placed  by  this  clause  under  the  protection  of  the  Federal  Con- 
stitution, and  the  privileges  and  immunities  of  citizens  of  a  State,  what- 
ever they  may  be,  are  not  intended  to  have  any  additional  protection  by 
this  paragraph  of  the  amendment.  Slaughter  House  Cases,  16  Wall.  36. 

The  distinction  between  citizenship  of  the  United  States  and  citizen- 


374  AMENDMENTS    TO    THE    CONSTITUTION. 

ship  of  a  State,  is  clearly  recognized  and  established.  Not  only  may  a 
man  be  a  citizen  of  the  United  States  without  being  a  citizen  of  a  State, 
but  an  important  element  is  necessary  to  convert  the  former  into  the  latter. 
He  must  reside  within  the  State  to  make  him  a  citizen  of  it,  but  it  is  only 
necessary  that  he  should  be  born  or  naturalized  in  the  United  States  to 
be  a  citizen  of  the  Union.  Slaughter  House  Cases,  16  Wall.  36;  U.  S.  v. 
Cruikshank,  I  Woods,  308 ;  s.  C.  92  U.  S.  542. 

The  privileges  and  immunities  are  the  same  as  those  secured  to  the 
citizens  of  each  State  by  section  two  of  article  four.  Slaughter  House 
Cases,  1 6  Wall.  36. 

This  clause  includes  only  such  privileges  or  immunities  as  are  derived 
from  or  recognized  by  the  Constitution.  State  v.  McCann,  21  Ohio  St. 
198. 

When  political  rights  and  privileges  are  secured  in  the  Constitution  only 
by  a  declaration  that  the  State  or  the  United  States  shall  not  violate  or 
abridge  them,  it  is  at  once  understood  that  they  are  not  created  or  confer- 
red by  the  Constitution,  but  that  the  Constitution  only  guarantees  that  they 
shall  not  be  impaired  by  the  State  or  the  United  States,  as  the  case  may 
be.  The  fulfillment  of  this  duty  by  the  United  States,  is  the  only  duty  with 
which  that  Government  is  charged.  The  affirmative  enforcement  of  the 
rights  and  privileges  themselves,  unless  something  more  is  expressed,  does 
not  devolve  on  it,  but  belongs  to  the  State  government  as  a  part  of  its 
residuary  sovereignty.  U.  S.  v.  Cruikshank,  I  Woods,  308;  S.  C.  92  U.  S. 
542;  contra,  U.  S.  v.  Hall,  13  I.  R.  R.  181  ;  S.  C.  3  C.  L.  N.  260. 

There  can  be  no  constitutional  legislation  of  Congress  for  directly  en- 
forcing the  privileges  and  immunities  of  citizens  of  the  United  States  by 
original  proceedings  in  the  Federal  courts,  where  the  State  has  passed  no 
law  adverse  to  them.  U.  S.  v.  Cruikshank,  I  Woods,  308 ;  S.  C.  92  U.  S. 

542. 

Each  State  has  the  right  to  regulate  the  immunities  and  privileges  of 
its  own  citizens,  provided  that  in  so  doing  it  does  not  abridge  the  privileges 
and  immunities  of  citizens  of  the  United  States.  Slaughter  House  Cases, 
1 6  Wall.  36. 

A  State  law  which  prohibits  persons  from  practicing  medicine  or  sur- 
gery unless  they  have  received  a  diploma  from  some  regularly  chartered 
medical  school,  excepting  those  who  have  practiced  in  the  State  for  ten 
years  next  preceding  the  passage  of  the  law,  is  valid.  Ex  parte  Spinney, 
10  Nev.  323. 

A  statute  regulating  slaughter  houses  is  a  part  of  the  police  power  of 
the  State,  and  does  not  deprive  a  party  of  his  property  without  due  process 
of  law,  or  deny  him  the  equal  protection  of  the  laws.  Slaughter  House 
Cases,  1 6  Wall.  36;  contra,  Slaughter  House  Case,  i  Woods,  21. 


DUE  PROCESS.  375 

A  trial  by  jury  in  suits  at  common  law  pending  in  the  State  courts,  is 
not  a  privilege  or  immunity  of  national  citizenship,  which  the  States  are 
forbidden  to  abridge.  Walker  v.  Sauvinet,  92  U.  S.  90. 

The  right  to  sell  intoxicating  liquors  is  not  one  of  the  rights  growing 
out  of  citizenship  of  the  United  States,  and  is  not  protected  by  this  provis- 
ion. Bartemeyer  v.  Iowa,  18  Wall,  129. 

The  right  to  admission  to  practice  law  in  the  State  courts,  is  not  one  of 
the  privileges  or  immunities  which  is  protected  by  this  clause.  Bradwell 
v.  State,  1 6  Wall.  130. 

A  statute  prohibiting  the  intermarriage  of  the  white  and  colored  races 
is  valid,  for  the  right  of  intermarriage  among  the  races  is  not  one  of  the 
privileges  or  immunities  protected  by  the  amendment.  Lonas  v.  State,  3 
Heisk.  287;  State  v.  Gibson,  36  Ind.  389;  Ex  parte  Wm.  B.  Hobbs,  i 
Woods,  537  ;  contra,  Burns  v.  State,  48  Ala.  195. 

The  right  of  voting,  or  the  privilege  of  voting,  is  a  right  or  privilege 
arising  under  the  Constitution  of  a  State,  and  not  of  the  United  States.  If 
the  right  belongs  to  any  particular  person,  it  is  because  such  person  is  en- 
titled to  it  as  a  citizen  of  the  State  where  he  offers  to  exercise  it,  and  not 
because  of  citizenship  of  the  United  States.  U.  S.  v.  Anthony,  1 1  Blatch. 
200;  U.  S.  v.  Cruikshank,  I  Woods,  308;  S.  C.  92  U.  S.  542. 

A  female  can  not  claim  the  right  to  vote  under  the  provisions  of  this 
amendment,  for  it  is  not  a  privilege  or  immunity  that  is  protected  thereby. 
Van  Valkenburg  v.  Brown,  43  Cal.  43;  Minor  v.  Happersett,  21  Wall.  162  ; 
U.  S.  v.  Anthony,  n  Blatch.  200;  Spencers.  Board,  I  McArthur,  169. 

An  arrest  made  by  an  officer  of  the  State  militia,  in  pursuance  of  mili- 
tary power  granted  to  him  by  the  governor  against  persons  in  insurrection, 
does  not  abridge  the  privileges  or  immunities  of  citizens.  In  re  Bergen,  2 
Hughes,  512. 

Congress  can  not  protect  a  citizen  in  the  right  to  use  a  public  convey- 
ance for  local  travel.  Cully  v.  Bait.  &  O.  R.  R.  Co.  i  Hughes,  536. 

Due  Proce§s. 

Due  process  of  law  is  process  due  according  to  the  law  of  the  land. 
This  process  in  the  States  is  regulated  by  the  law  of  the  State.  A  party  is 
not  deprived  of  his  property  without  due  process  of  law,  although  the  case 
is  tried  without  a  jury.  Walker  v.  Sauvinet,  92  U.  S.  90. 

The  words  "  due  process  of  law  "  mean  law  in  its  regular  course  of 
administration  according  to  the  prescribed  forms  and  in  accordance  with 
the  general  rules  for  the  protection  of  individual  rights,  and  do  not  pro- 
hibit the  Statesafrom  prosecuting  for  felonies  by  information  instead  of  by 


3/6  AMENDMENTS    TO    THE    CONSTITUTION. 

indictment,  if  they  choose  to  abolish  the  grand  jury  system.    Rowan  v. 
State,  30  Wis.  129. 

This  provision  adds  nothing  to  the  rights  of  one  citizen  as  against  an- 
other. It  simply  furnishes  an  additional  guaranty  against  any  encroach- 
ment by  the  States  upon  the  fundamental  rights  which  belong  to  every  citi- 
zen as  a  member  of  society.  Sovereignty  for  the  purpose  of  protecting  the 
rights  of  life  and  personal  liberty  when  assailed  by  others,  rests  in  the 
States  alone.  U.  S.  v.  Cruikshank,  92  U.  S.  542 ;  s.  C.  I  Woods,  308. 

The  Federal  Government  has  no  power  to  punish  individuals  for  con- 
spiring to  deprive  a  person  of  life  or  liberty,  without  due  process  of  law. 
U.  S.  v.  Cruikshank,  92  U.  S.  542. 

A  State  law  regulating  a  pursuit  or  profession,  or  regulating  the  use  of 
property,,  does  not  in  any  manner  abridge  the  liberty  of  citizens.  Munn  v. 
People,  69  111.  80  ;  S.  C.  94  U.  S.  113  ;  Ex  parte  Spinney,  10  Nev.  323. 

The  entry  of  a  judgment  on  a  forfeited  recognizance  does  not  take  the 
property  of  the  cognizor  without  due  process  of  law.  People  v.  Quigg,  59 
N.  Y.  83. 

A  State  law  which  prohibits  common  carriers  from  discriminating 
against  passengers  on  account  of  race  or  color,  does  not  deprive  them  of 
property  wjthout  due  process  of  law.  Decuir  v.  Benson,  27  La.  Ann.  i. 

A  levy  by  a  collector  in  pursuance  of  a  State  law,  to  collect  a  tax,  is  due 
process  of  law.  McMillen  v.  Anderson,  27  La.  Ann.  18. 

A  State  law  allowing  overseers  of  the  poor  to  commit  an  alleged  va- 
grant to  the  workhouse  on  an  ex  parte  hearing,  is  void,  for  it  deprives  him 
of  his  liberty  without  due  process  of  law.  An  ex  parte  decision  is  not 
such  process.  Portland  v.  Bangor,  65  Me.  120. 

A  statute  authorizing  a  commissioner  to  ascertain  whether  lewd  and 
debauched  women  are  among  the  passengers,  and  to  prevent  them  from 
landing,  is  valid.  Ex  parte  Ah  Fook,  49  Cal.  402. 

A  statute  regulating  the  use,  or  even  the  price  of  the  use  of  private 
property,  does  not  necessarily  deprive  an  owner  of  his  property  without 
due  process  of  law.  Under  some  circumstances  it  may,  but  not  under  all. 
Munn  v.  Illinois,  94  U.  S.  113;  S.  C.  69  111.  80. 

When  private  property  is  affected  with  a  public  interest,  it  ceases  to  be 
juris  privati  only.  Property  becomes  clothed  with  a  public  interest  when 
used  in  a  manner  to  make  it  of  public  consequence  and  affect  the  commu- 
nity at  large.  When  one,  therefore,  devotes  his  property  to  a  use  in  which 
the  public  has  an  interest,  he  in  effect  grants  to  the  public  an  interest  in., 
that  use,  and  must  submit  to  be  controlled  by  the  public  for  the  common 
good  to  the  extent  of  the  interest  he  has  thus  created.  Munn  v.  Illinois, 
94  U.  S.  113;  s.  C.  69  111.  80. 


EQUAL    PROTECTION.  377 

A  State  statute  regulating  the  charges  for  the  storage  of  grain  by  ware- 
houses is  valid.  Munn  if.  Illinois,  94  U.  S.  113;  S.  C.  69  111.  80. 

If  no  state  of  facts  could  exist  that  would  justify  a  statute  regulating  the 
use  of  private  property,  then  the  act  would  be  void ;  but  if  it  could,  the 
presumption  is  that  it  did.  The  legislature  is  the  exclusive  judge  of  the 
propriety  of  interference  within  the  scope  of  legislative  power.  Munn  v. 
Illinois,  94  U.  S.  113;  S.  C.  69  111.  80. 

What  is  a  reasonable  compensation  for  the  use  of  property  is  a  legisla- 
tive and  not  a  judicial  question,  when  the  legislature  has  acted  on  the  sub- 
ject. Munn  v.  Illinois,  94  U.  S.  113 ;  S.  C.  69  111.  80. 

The  assessment  of  a  tax  is  necessarily  summary,  and  need  not  be  by  a 
judicial  proceeding.  It  is  valid,  although  the  party  had  no  opportunity  to 
be  present  when  he  was  assessed.  McMillen  v.  Anderson,  6  A.  L.  J.  335. 

An  arrest  made  by  an  officer  of  the  State  militia  in  pursuance  of  au- 
thority granted  to  him  by  the  governor  against  persons  in  insurrection, 
does  not  deprive  any  person  of  liberty  without  due  process  of  law,  for  in 
times  of  insurrection  the  sword  is  due  process  of  law.  In  re  Bergen,  2 
Hughes,  512. 

Equal  Protection. 

This  provision  does  not  add  anything  to  the  rights  which  one  citizen  has 
under  the  Constitution  against  another.  The  equality  of  the  rights  of  citi- 
zens is  a  principle  of  republicanism.  Every  republican  government  is  in 
duty  bound  to  protect  all  its  citizens  in  the  enjoyment  of  this  principle,  if 
within  its  power.  That  duty  was  originally  assumed  by  the  States,  and 
still  remains  there.  The  only  obligation  resting  upon  the  United  States  is 
to  see  that  the  States  do  not  deny  the  right.  This  the  amendment  guar- 
antees, but  no  more.  The  power  of  the  National  Government  is  limited  to 
the  enforcement  of  this  guaranty.  U.  S.  v.  Cruikshank,  I  Woods,  308  ; 
S.  C.  92  U.  S.  542. 

Any  outrages,  atrocities,  or  conspiracies,  whether  against  the  colored 
race  or  white  race,  which  do  not  flow  from  the  war  of  races,  but  spring 
from  the  ordinary  felonious  or  criminal  intent  which  prompts  to  such  un- 
lawful acts,  are  not  within  the  jurisdiction  of  the  United  States,  but  within 
the  sole  jurisdiction  of  the  States,  unless  the  States,  by  their  laws,  deny  to 
any  particular  race  equality  of  rights.  U.  S.  v.  Cruikshank,  I  Woods,  308; 
S.  C.  92  U.  S.  542. 

The  war  of  race,  whether  it  assumes  the  dimensions  of  civil  strife  or  do- 
mestic violence,  whether  carried  on  in  a  guerilla  or  predatory  form,  or  by 
private  combinations,  or  even  by  private  outrage  or  intimidation,  is  subject 
to  the  jurisdiction  of  the  Government  of  the  United  States,  and  when  any 
atrocity  is  committed  which  may  be  assigned  to  this  cause,  it  may  be  pun- 


378  AMENDMENTS    TO    THE    CONSTITUTION. 

ished  by  the  laws  and  in  the  courts  of  the  United  States.     U.  S.  v.  Cruik- 
shank,  I  Woods,  308 ;  S.  C.  92  U.  S.  542. 

If  the  wrong  is  of  that  character  which  permits  of  its  being  done  only 
by  certain  classes  of  persons,  or  by  one  sex,  and  not  by  the  other,  the  Con- 
stitution does  not  require  that  the  remedy  shall  be  broader  than  the  evil,  or 
be  made  to  act  upon  persons  other  than  those  whose  conduct  produces 
the  mischief,  or  stand  in  the  way  of  the  legislature's  directing  the  remedy 
by  special  designation  against  the  class  or  sex  to  which  the  wrong  or  evil 
is  exclusively  due.  Ex  parte  Nellie  Smith,  38  Cal.  702. 

A  statute  which  authorizes  a  recovery  of  double  the  value  of  the  live 
stock  destroyed  by  railroad  trains  at  points  where  the  roads  are  not  fenced, 
and  where  the  right  to  fence  exists,  is  valid,  and  does  not  deprive  the  cor- 
poration of  the  equal  protection  of  the  laws.  Tredway  v.  S.  C.  &  St.  P.  R. 
Co.  43  Iowa,  527. 

A  statute  prohibiting  females  from  being  in  places  where  liquors  are 
sold,  after  a  certain  hour  at  night,  is  valid.  Ex  parte  Nellie  Smith,  38  Cal. 
702. 

A  State  law  prohibiting  Chinese  from  testifying  in  any  action  wherein  a 
white  person  is  a  party,  does  not,  in  criminal  cases,  deprive  them  of  the 
equal  protection  of  the  laws.  People  v.  Brady,  40  Cal.  198. 

All  persons,  whether  native  or  foreign,  high  or  low,  are,  while  within 
the  jurisdiction  of  the  United  States,  entitled  to  the  equal  protection  of  the 
laws.  Equality  of  protection  implies  not  only  equal  accessibility  to  the 
courts  for  the  prevention  or  redress  of  wrongs,  and  the  enforcement  of 
rights,  but  equal  exemption,  with  others  of  the  same  class,  from  all  charges 
and  burdens  of  every  kind.  Ex  parte  Ah  Fong,  3  Saw.  144. 

A  statute  regulating  the  charges  for  storage  in  warehouses,  in  certain 
places,  does  not  deprive  the  owners  of  the  equal  protection  of  the  laws. 
Munn  T/.  Illinois,  94  U.  S.  113. 

A  State,  while  providing  a  system  of  education,  can  not  exclude  colored 
children  from  its  benefits  merely  because  of  their  African  descent,  for  this 
would  deny  them  the  equal  protection  of  the  laws.  Ward  v.  Flood,  48  Cal. 
36  ;  contra,  Marshall  v.  Donovan,  10  Bush,  68 1. 

Unless  separate  schools  are  in  fact  maintained  for  colored  children,  all 
children,  whether  white  or  colored,  have  an  equal  right  to  become  pupils 
at  any  common  school  organized  under  the  laws  of  the  State.  Ward  v. 
Flood,  48  Cal.  36. 

A  statute  providing  for  the  education  of  colored  children  in  schools  sep- 
arate from  those  provided  for  the  education  'of  white  children,  is  valid. 
Ward  v.  Flood,  48  Cal.  36 ;  Cory  v.  Carter,  48  Ind.  327 ;  State  v.  McCann, 
21  Ohio  St.  1 08. 


RIGHT    TO    VOTE.  379 

A  State  law  which  inflicts  a  more  severe  punishment  for  adultery  or 
fornication,  where  the  parties  are  of  different  races,  than  where  they  are  of 
the  same  race,  is  valid.  Ford  v.  State,  53  Ala.  150;  Ellis  v.  State,  42  Ala. 
525. 

Disability. 

The  intention  of  the  people  was  to  create  a  disability  to  6e  made  opera- 
tive by  the  legislation  of  Congress,  in  its  ordinary  course.  Legislation  by 
Congress  is  necessary  to  give  effect  to  the  prohibition  by  providing  for  the 
removal.  The  exercise  by  an  officer  of  his  functions  until  removed,  in  pur- 
suance of  such  legislation,  is  not  unlawful.  Ex  parte  Caesar  Griffin,  25 
Tex.  Supp.  623  ;  s.  C.  Chase,  364 ;  Powell  v.  Boon,  43  Ala.  469. 

A  person  engaged  in  the  rebellion,  who  held  office  under  the  Confeder- 
ate Government,  or  voluntarily  aided  the  rebellion  by  personal  services  or 
contribution  other  than  charitable,  of  anything  that  was  useful  or  necessary 
in  the  confederate  service,  is  disqualified.  Worthy  v.  Barrett,  63  N.  C.  199. 

A  sheriff  who  took  an  oath  to  support  the  Constitution  is  within  this 
prohibition.  Worthy  v.  Barrett,  63  N.  C.  199. 

A  county  attorney  who  took  the  oath  to  support  the  Constitution  is 
within  the  prohibition.  In  re  William  L.  Tate,  63  N.  C.  308. 

Did  not  this  amendment  bar  any  other  punishment  ?  Ex  parte  Jefferson 
Davis,  Chase,  i. 

Confederate  Debt. 

No  contract  to  be  paid  in  confederate  notes  can  be  enforced,  for  that 
would  be  a  payment  of  the  confederate-  debt.  Smith  v.  Nelson,  34  Tex. 
516. 

[The  following  amendment  was  proposed  at  the  third  session  of  the  fortieth 
Congress.  16  Stat.] 

ARTICLE  XV. 

SEC.  i.  The  right  of  citizens  of  the  United  States  to 
vote,  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

SEC.  2.  The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

This  amendment  does  not  establish  the  right  of  any  citizen  to  vote.  It 
merely  declares  that  race,  color,  or  previous  condition  of  servitude  shall 
not  exclude  him.  U.  S.  v.  Cruikshank,  i  Woods,  308;  S.  C.  92  U.  S.  542. 


380  AMENDMENTS    TO    THE    CONSTITUTION. 

The  object  and  effect  of  this  amendment  was  to  place  the  colored  man 
in  the  matter  of  suffrage  on  the  same  basis  with  the  white.  It  does  not 
give  him  the  right  to  vote  independent  of  the  restrictions  and  qualifica- 
tions, such  as  age  and  residence,  imposed  by  the  State  laws  upon  the 
white  man.  Anthony  v.  Halderman,  7  Kans.  50. 

No  person  can  claim  the  right  to  vote  under  this  provision,  unless  he 
is  a  citizen  of  the  United  States.  Hedgman  v.  State,  26  Mich.  51. 

This  amendment  deprives  the  provisions  of  the  State  constitutions  and 
laws  restricting  the  exercise  of  suffrage  to  white  persons  of  all  legal  force 
and  efficacy.  Wood  v.  Fitzgerald,  3  Oregon,  568 ;  Anthony  v.  Halder- 
man, 7  Kans.  50. 

The  amendment  does  not  confer  an  authority  to  impose  a  penalty  for 
every  wrongful  refusal  to  receive  the  vote  of  a  qualified  elector  at  State 
•  elections.     It  is  only  where  the  wrongful  refusal  at  such  an  election  is  be- 
cause of  race,  color  or  previous  condition  of  servitude,  that  Congress  can 
interfere  and  provide  for  its  punishment.     U.  S.  v.  Reese,  92  U.  S.  214. 

This  amendment  does  not  confer  the  right  of  suffrage  upon  any  one. 
It  prevents  the  States  from  giving  preference  to  one  citizen  of  the  United 
State*  over  another,  on  account  of  race,  color  or  previous  condition  of 
of  servitude.  It  has  invested  the  citizens  of  the  United  States  with  a  new 
constitutional  right  which  is  within  the  protective  power  of  Congress.  U. 
S.  v.  Reese,  92  U.  S.  214;  U.  S.  v.  Cruikshank,  I  Woods,  308;  S.  C.  92  U. 
S.  542. 

The  limitation  which  is  prescribed  by  the  amendment  must  not  be  over- 
looked. It  is  not  the  right  to  vote  which  is  guaranteed  to  all  citizens. 
Congress  can  not  interfere  with  the  regulation  of  that  right  by  the  States, 
except  to  prevent  by  appropriate  legislation,  any  distinction  as  to  race, 
color  or  previous  condition.  U.  S.  v.  Cruikshank,  I  Woods,  308;  S.  C.  92 
U.  S.  542  ;  U.  S.  v.  Petersburg  Judges,  14  A.  L.  Reg.  105,  238. 

This  clause  confers  a  positive  right  which  did  not  exist  before.  The 
language  is  peculiar.  It  is  composed  of  two  negatives.  The  right  shall 
not  be  denied.  That  is,  the  right  shall  be  enjoyed;  the  right,  namely,  the 
right  to  be  exempt  from  the  disability  of  race,  color  or  previous  condition 
of  servitude,  as  respects  the  right  to  vote.  U.  S.  v.  Cruikshank,  I  Woods, 
308 ;  S.  C.  92  U.  S.  542. 

The  right  conferred  and  guaranteed  is  not  an  absolute,  but  a  relative 
one.  This  clause  does  not  confer  the  right  to  vote.  That  is  the  preroga- 
tive of  the  State  laws.  It  only  confers  a  right  not  to  be  excluded  from 
voting  by  reason  of  race,  color  or  previous  condition  of  servitude,  and  this 
is  all  the  right  that  Congress  can  enforce.  U.  S.  v.  Cruikshank,  I  Woods, 
308  ;  S.  C.  92  U.  S.  542. 


RIGHT    TO    VOTE.  381 

A  State  may  exclude  a  citizen  from  voting  on  the  ground  of  sex.  Van 
Valkenburg  v.  Brown,  43  Cal.  43. 

The  proclamation  of  the  Secretary  of  State  acting  in  behalf  of  the 
President  is  prima  facie  evidence  of  the  legal  ratification  of  the  amend- 
ment. Wood  v.  Fitzgerald,  3  Oregon,  568.- 

When  State  laws  impose  duties  upon  persons,  whether  officers  or  not, 
the  performance  or  non-performance  of  which  affects  rights  under  the 
Federal  Government,  Congress  may  make  the  non-performance  of  those 
duties  an  offense  against  the  United  States,  and  punish  it  accordingly.  U. 
S.  v.  Given,  17  I.  R.  R.  289. 


APPENDIX. 


APPENDIX 


THE  DECLARATION  OF  INDEPENDENCE. 

A  Declaration  ~by  the  Representatives  of  the  United  States 
of  America  in  Congress  assembled  : 


EN,  in  the  course  of  human  events,  it  becomes  necessary 
for  one  people  to  dissolve  the  political  bands  which  have  con- 
nected them  with  another,  and  to  assume,  among  the  powers  of 
the  earth,  the  separate  and  equal  station  to  which  the  laws  of 
nature  and  of  nature's  God  entitle  them,  a  decent  respect  to  the 
opinions  of  mankind  requires  that  they  should  declare  the  causes 
which  impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident  :  that  all  men  are 
created  equal  ;  that  they  are  endowed,  by  their  Creator,  with 
certain  unalienable  rights  ;  that  among  these  are  life,  liberty,  and 
the  pursuit  of  happiness.  That  to  secure  these  rights,  govern- 
ments are  instituted  among  men,  deriving  their  just  powers  from 
the  consent  of  the  governed  ;  that  whenever  any  form  of  gov- 
ernment becomes  destructive  of  these  ends,  it  is  the  right  of  the 
people  to  alter  or  to  abolish  it,  and  to  institute  a  new  government, 
laying  its  foundation  on  such  principles,  and  organizing  its  pow- 
ers in  such  form  as  to  them  shall  seem  most  likely  to  effect  their 
safety  and  happiness.  Prudence,  indeed,  will  dictate,  that  gov- 
ernments long  established  should  not  be  changed  for  light  and 
transient  causes;  and,  accordingly,  all  experience  hath  shown, 
that  mankind  are  more  disposed  to  suffer  while  evils  are  suffer- 
able,  than  to  right  themselves  by  abolishing  the  forms  to  which 
they  are  accustomed.  But  when  a  long  train  of  abuses  and 
usurpations,  pursuing  invariably  the  same  object,  evinces  a  de- 
sign to  reduce  them  under  absolute  despotism,  it  is  their  right, 
25 


386  APPENDIX. 

it  is  their  duty  to  throw  off  such  government,  and  to  provide 
new  guards  for  their  future  security.  Such  has  been  the  patient 
sufferance  of  these  colonies  ;  and  such  is  now  the  necessity  which 
constrains  them  to  alter  their  former  systems  of  government. 
The  history  of  the  present  king  of  Great  Britain  is  a  history  of 
repeated  injuries  and  usurpations,  all  having  in  direct  object  the 
establishment  of  an  absolute  tyranny  over  these  States.  To 
prove  this,  let  facts  be  submitted  to  a  candid  world. 

He  has  refused  his  assent  to  laws  the  most  wholesome  and 
necessary  for  the^public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operation  till  his- 
assent  should  be  obtained  ;  and  when  so  suspended,  he  has  utter- 
ly neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of 
large  districts  of  people,  unless  those  people  would  relinquish 
the  right  of  representation  in  the  legislature — a  right  inestima- 
ble to  them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,, 
uncomfortable,  and  distant  from  the  depository  of  their  public 
records,  for  the  sole  purpose  of  fatiguing  them  into  compliance 
with  his  measures. 

He  has  dissolved  representative  houses  repeatedly,  for  oppos- 
ing, with  ma~nly  firmness,  his  invasions  on  the  rights  of  the 
people. 

He  has  refused,  for  a  long  time  after  such  dissolutions,  to 
cause  others  to  be  elected ;  whereby  the  legislative  powers,  in- 
capable of  annihilation,  have  returned  to  the  people  at  large, 
for  their  exercise,  the  State  remaining,  in  the  mean  time,  ex- 
posed to  all  the  dangers  of  invasion  from  without,  and  convul- 
sions within. 

He  has  endeavored  to  prevent  the  population  of  these  States ; 
for  that  purpose  obstructing  the  laws  for  naturalization  of  for- 
eigners; refusing  to  pass  others  to  encourage  their  migration 
hither,  and  raising  the  conditions  of  new  appropriations  of 
lands. 

He  has  obstructed  the  administration  of  justice,  by  refusing 
his  assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will_  alone,  for  the 


THE  DECLARATION  OF  INDEPENDENCE.      387 

tenure  of  their  offices,  and  the  amount  and  payment  of  their 
salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither 
swarms  of  officers,  to  harass  our  people,  and  eat  out  their  sub- 
stance. 

He  has  kept  among  us,  in  times  o£  peace,  standing  armies, 
without  the  consent  of  our  legislatures. 

He  has  affected  to  render  the  military  independent  of,  and 
superior  to,  the  civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction 
foreign  to  our  constitution,  and  unacknowledged  by  our  laws ; 
giving  his  assent  to  their  acts  of  pretended  legislation  : 

For  quartering  large  bodies  of  armed  troops  among  us  : 

For  protecting  them,  by  a  mock  trial,  from  punishment  for 
any  murders  which  they  should  commit  on  the  inhabitants  of 
these  States : 

For  cutting  off  our  trade  with  all  parts  of  the  world  : 

For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by 
jury:  f 

For  transporting  us  beyond  the  seas  to  be  tried  for  pre- 
tended offenses : 

For  abolishing  the  free  system  of  English  laws  in  a  neigh- 
boring province,  establishing  therein  an  arbitrary  government, 
and  enlarging  its  boundaries,  so  as  to  render  it  at  once  an  ex- 
ample and  fit  instrument  for  introducing  the  same  absolute  rule 
into  these  colonies : 

For  taking  awayjour^cjiarters,  abolishing  our  most  valuable 
laws,  and  altering,  fundamentally,  the  powers  of  our  govern- 
ments : 

For  suspending  our  own  legislatures,  and  declaring  them- 
selves invested  with  power  to  legislate  for  us  in  all  cases  what- 
soever. 

He  has  abdicated  government  here,  by  declaring  us  out  of 
his  protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burnt  our 
towns,  and  destroyed  the  lives  of  our  people. 

He  is  at  this  time  transporting  large  armies  of  foreign  mer- 
cenaries to  complete  the  works  of  death,  desolation,  and  tyran- 


388  APPENDIX. 

ny,  already  begun  with  circumstances  of  cruelty  and  perfidy, 
scarcely  paralleled  in  the  most  barbarous  ages,  and  totally  un- 
worthy the  head  of  a  civilized  nation. 

^  He  has  constrained  our  fellow-citizens,  taken  captive  on  the 
*/  high  seas,  to  bear  arms  against  their  country,  to  become  the  ex- 
*      ecutioners  of  their  f Heads  and  brethren,  or  to  fall  themselves 
by  their  hands. 

He  has  excited  domestic  insurrection  among  us,  and  has 
endeavored  to  bring  on  the  inhabitants  of  our  frontiers  the  mer- 
ciless Indian  savage?,  whose  known  rule  of  warfare  is  an  undis- 
tinguished destruction  of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions  we  have__pelitioned  for 
redress  in  the  most  humble  terms :  our  repeated  petitions  have 
been  answered  only  by  repeated  injury.  A  prince,  whose  char- 
acter is  thus  marked  by  every  act  which  may  define  a  tyrant,  is 
unfit  to  be  the  ruler  of  a  free  people. 

Nor  have  we  been  wanting  in  attention  to  our  British  breth- 
ren. We  have  warned  them,  from  time  to  time,  of  attempts  by 
their  legislature  to  extend  an  unwarrantable  jurisdiction  over 
us.  We  have  reminded  them  of  the  circumstances  of  our  emi- 
gration and  settlement  here.  We  have  appealed  to  their  native 
justice  and  magnanimity,  and  we  have  conjured  them  by  the 
ties  of  our  common  kindred  to  disavow  these  usurpations,  which 
would  inevitably  interrupt  our  connections  and  correspondence. 
They  too  have  been  deaf  to  the  voice  of  justice  and  of  consan- 
guinity. We  must,  therefore,  acquiesce  in  the  necessity  which 
denounces  our  separation,  and  hold  them,  as  we  hold  the  rest  of 
mankind — enemies  in  war,  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  UNITED  STATES  OF 
AMERICA,  in  general  congress  assembled,  appealing  to  the  Su- 
preme Judge  of  the  world  for  the  rectitude  of  our  intentions, 
do,  in  the  name  and  by  the  authority  of  the  good  people  of  these 
colonies,  solemnly  publish  and  declare,  That  these  United  Col- 
onies are,  and  of  right  ought  to  be,  FREE  and  INDEPENDENT 
STATES  ;  that  they  are  absolved  from  all  allegiance  to  the  British 
crown,  and  that  all  political  connection  between  them  and  the 
state  of  Great  Britain  is,  and  ought  to  be,  totally  dissolved ; 
and  that,  as  FREE  and  INDEPENDENT  STATES,  they  have  full 
power  to  levy  war,  conclude  peace,  contract  alliances,  establish 


THE    DECLARATION    OF    INDEPENDENCE.  389 

commerce,  and  to  do  all  other  acts  and  things  which  INDEPEN- 
DENT STATES  may  of  right  do.  And  for  the  support  of  this 
Declaration,  with  a  firm  reliance  on  the  protection  of  DIVINE 
PROVIDENCE,  we  mutually  pledge  to  each  other  our  lives,  our 
fortunes,  and  our  sacred  honor. 

JOHJST  HANCOCK. 

New  Hampshire, — Josiah  Bartlett.  William  TV  hippie,  Mat- 
thew Thornton. 

Massachusetts  Bay. — Samuel  Adams,  John  Adams,  Robert 
Treat  Paine,  Elbridge  Gerry. 

Rhode  Island. — Stephen  Hopkins,  William  Ellery. 

Connecticut. — Roger  Sherman,  Samuel  Huntington,  Wil- 
liam Williams,  Oliver  Wolcott. 

New  York. — William  Floyd,  Philip  Livingston,  Francis 
Lewis,  Lewis  Morris. 

New  Jersey. — Richard  Stockton,  John  Witherspoon,  Francis 
Ilopkinson,  John  Hart,  Abraham  Clark. 

Pennsylvania. — Robert  Morris,  Benjamin  Rush,  Benjamin 
Franklin,  John  Morton,  George  Clymer,  James  Smith,  George 
Taylor,  James  Wilson,  George  Ross. 

Delaware. — Caesar  Rodney,  George  Read,  Thos.  M'Kean. 

Maryland. — Samuel  Chase,  William  Paca,  Thomas  Stone, 
Charles  Carroll  of  Carroll  ton. 

Virginia. — George  Wythe,  Richard  Henry  Lee,  Thomas 
Jefferson,  Benjamin  Harrison,  Thomas  Kelson,  Jr.,  Francis 
Lightfoot  Lee,  Carter  Braxton. 

North  Carolina. — William  Hooper,  Joseph  Hewes,  John 
Penn. 

South  Carolina. — Edward  Rutledge,  Thomas  Hay  ward,  Jr., 
Thomas  Lynch,  Jr.,  Arthur  Middleton. 

Georgia. — Button  Gwinnett,  Lyman  Hall,  George  Walton. 

Resolved,  That  copies  of  the  Declaration  be  sent  to  the 
several  assemblies,  conventions,  and  committees  or  councils  of 
safety,  and  to  the  several  commanding  officers  of  the  conti- 
nental troops;  that  it  be  proclaimed  in  each  of  the  United 
States  and  at  the  head  of  the  army. 


THE  ARTICLES  OF  CONFEDERATION. 


To  all  to  whom  these  presents  shall  come,  we,  the  under- 
signed delegates  of  the  States,  affixed  to  our  'names,  send  greet- 
ing :  whereas,  the  delegates  of  the  United  States  of  America  in 
Congress  assembled  did,  on  the  \5th  day  of  November,  in  the 
year  of  our  Lord  1777,  and  in  the  second  year  of  the  Indepen- 
dence of  America,  agree  to  certain  articles  of  confederation  and 
perpetual  union  "between  the  States  of  New  Hampshire,  Mas- 
sachusetts Bay,  Rhode  Island  and  Providence  Plantations, 
Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  in  the  words  following ,  viz. : 

ARTICLES  OF  CONFEDERATION  AND  PERPETUAL  UNION,  BETWEEN 
THE  STATES  OF  NEW  HAMPSHIRE,  MASSACHUSETTS  BAY, 
RHODE  ISLAND  AND  PROVIDENCE  PLANTATIONS,  CONNECTI- 
CUT, NEW  YORK,  NEW  JERSEY,  PENNSYLVANIA,  DELAWARE, 
MARYLAND,  VIRGINIA,  NORTH  CAROLINA,  SOUTH  CAROLINA, 
AND  GEORGIA. 

ARTICLE  1.  The  style  of  this  confederacy  shall  be  '•  THE 
UNITED  STATES  OF  AMERICA." 

ART.  2.  Each  State  retains  its  sovereignty,  freedom,  and  in- 
dependence, and  every  power,  jurisdiction,  and  right,  which  is 
not  by  this  confederation  expressly  delegated  to  the  United 
States  in  Congress  assembled. 

ART.  3.  The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  eacli  other,  for  their  common  defense, 
the  security  of  their  liberties,  and  their  mutual  and  general  wel- 
fare, binding  themselves  to  assist  each  other  against  all  force 
offered  to,  or  attacks  made  upon  them,  or  any  of  them,  on  ac- 
count of  religion,  sovereignty,  trade,  or  any  other  pretense 
whatever. 

I    ART.  4.  The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  States 


THE    ARTICLES    OF    CONFEDERATION. 


391 


In  this  union,  the  free  inhabitants  of  each  of  these  States  (pau- 
pers, vagabonds,  and  fugitives  from  justice  excepted),  shall  be-,, 
entitled  to  all  privileges  and  immunities  of  free  citizens  iir1  ' 
the  several  States,  and  the  people  of  each  State  shall  have  free 
ingress  and  regress  to  and  from  any  other  State,  and  shall  enjoy 
therein  all  the  privileges  of  trade  and  commerce,  subject  to  the 
same  duties,  impositions,  and  restrictions,  as  the  inhabitants 
thereof  respective!}7 :  -  Provided  that  such  restrictions  shall  not 
extend  so  far  as  to  prevent  the  removal  of  property  imported 
into  any  State,  to  any  other  State,  of  which  the  owner  is  an  in- 
habitant :  Provided,  also,  that  no  imposition,  duties,  or  restric-J  /£ 
tion,  shall  be  laid  by  any  State  on  the  property  of  the  United 
States,  or  either  of  them. 

QL  If  any  person  guilty  of,  or  charged  with  treason,  felony,  or 
other  high  misdemeanor  in  any  State,  shall  flee  from  justice, 
and  be  found  in  any  of  the  United  States,  he  shall,  upon  de- 
mand of  the  governor  or  executive  power  of  the  State  from 
which  he  fled,  be  delivered  up  and  removed  to  the  State  having 
jurisdiction  of  his  offense. 

3  Full  faith  and  credit  shall  be  given  in  each  of  these  States, 
to  the  records,  acts,  and  judicial  proceedings  of  the  courts  and 
magistrates  of  every  other  State. 

(  ART.  5.  For  the  more  convenient  management  of  the  gen- 
eral interests  of  the  United  States,  delegates  shall  be  an- 
nuallv  appointed  in  such  manner  as  the  legislature  of  each  State 
shall  direct,  to  meet  in  Congress  on  the  first  Monday  in  Novem- 
ber, in  every  year,  with  a  power  reserved  to  each  State  to  recall 
its  delegates,  or  any  of  them,  at  any  time  within  the  year,  and 
to  send  others  in  their  stead,  for  the  remainder  of  the  year. 
i?~"N6  State  shall  be  represented  in  Congress  by  less  than  two, 
nor  by  more  than  seven  members ;  and  no  person  shall  be  cap- 
able of  being  a  delegate^ for  more  thjin_  three  }UggJjgt,_ir>  afiY 
term  of  six  years;  nor  shall  any  person,  being  a  delegate,  be 


T 


capable  of  holding  any  office  under  the  United  States,  for  wliich^ 
he,  or  any  other  for  his  benefit,  receives  any  salary,  fees,  or 
emolument  of  any  kind. 

3  Each  State  shall  maintain  its  own  delegates  in  any  meet- 
ing of  the  States,  and  while  they  act  as  members  of  the  com-  \ 
mittee  of  these  States. 


392  APPENDIX. 

*/  In  determining  questions  in  the  United  States  in  Congress, 
.assembled,  each  State  shall  have  one  vote. 
f  Freedom  of  speech  and  debate  in  Congress  shall  not  be- 
impeached  or  questioned  in  any  court  or  place  out  of  Congress,, 
and  the  members  of  Congress  shall" be  protected  in  their  persons 
from  arrests  and  imprisonments  during  the  time  of  their  going 
to  and  from,  and  attendance  on  Congress,  except  for  treason, 
felony,  or  breach  of  the  peace. 

/  ART.  6.LNo  State,  without  the  consent  of  the  United  States 
in  Congress  assembled,  shall  send  any  embassy  to,  or  receive 
any  embassy  from,  or  enter  into  any  conference,  agreement, 
alliance,  or  treaty,  with  any  king,  prince,  or  Statey/nor 
shall  any  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  or  any  of  them,  accept  of  any  present,  emolu- 
ment, office,  or  title  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  State:  nor  shall  the  United  States  in  Con- 
gress assembled,  or  any  of  them,  grant  any  title  of  nobility.^ 

'3-JNo  two  or  more  Slates  shall  enter  Jnto-any__jtreaty,  con- 
federation, or  alliance  whatever,  between  them,  without  the  con- 
sent of  the  United  States  in  Congress  assembled,  specifying  ac- 
curately the  purposes  for  which  the  same  is  to  be  entered  into, 
and  how  long  it  shall  continue. 

3  Ko  State  shall  lay  any  imposts  or  duties  which  may  in- 
terfere with  an3T  stipulations  in  treaties  entered  into  by  the 
United  States  in  Congress  assembled,  with  any  king,  prince, 
or  State,  in  pursuance  of  any  treaties  already  proposed  by  Con- 
gress to  the  courts  of  France  and  Spain. 

"\  !N"o  vessels  of  war  shall,.be  kept  up, .in  time  of  peace  by 
any  State,  except  such  number  only  as  shall  be  deemed  neces- 
sary by  the  United  States,  in  Congress  assembled,  for  the  de- 
fense of  such  State  or  its  trade  ;  nor  shall  any  body  of  forces  be 
kept  up,  by  any  State,  in  time  of  peace,  except  such  number 
only  a?,  in  the  judgment  of  the  United  States  in  Congress  as- 
sembled, shall  be  deemed  requisite  to  garrison  the  forts  neces- 
sary for  the  defense  of  such  State;  but  every  State  shall  always 
keep  up  a  well  regulated  and  disciplined  militia,  sufficiently 
armed  and  accoutered,  and  shall  provide  and  have  constantly 
ready  for  use,  in  public  stores,  a  due  number  of  field-pieces  and 


THE    ARTICLES    OF    CONFEDERATION.  393 

tents,  and   a  proper  quantity  of  arms,  ammunition,  and  camp 
equipage. 

£No  State  shall  engage  in  any  war  without  the  consent  of 
the  United  States  in  Congress  assembled,  unless  such  State  be 
actually  invaded  by  enemies,  or  shall  have  received  certain  ad- 
vice of  a  resolution  being  formed  by  some  nation  of  Indians  to- 
invade  such  State,  and  the  danger  is  so  imminent  as  not  to  ad- 
mit of  a  delay  till  the  United  States  in  Congress  assembled  can  be 
consulted  jpnor  shall  any  State  grant  commissions  to  any  ships 
or  vessels  of  war,  nor  letters  of  marque  or  reprisaji_excep^j.tj)e 
after  a  declaration  of  war  by  the  UnitecMStates  in  Congress 
assembled,  and  then  only  against  the  kingdom  or  State,  and  the 
subjects  thereof,  against  which  war  has  been  so  declared,  and 
under  such  regulations  as  shall  be  established  by  the  United 
States -in  Congress  assembled,  unless  such  State  be  infested  by 
pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for  that 
occasion,  and  kept  so  long  as  the  danger  shall  continue,  or  until 
the  United  States  in  Congress  assembled  shall  determine 
otherwise. 

'ART.  7.  When  land  forces  are  raised  by  any  State  for  the 
common  defense,  all  officers  of  or  under  the  rank  of  colonel 
shall  be  appointed  by  the  legislature  of  each  State  respectively 
by  whom  such  forces  shall  be  raised,  or  in  such  manner  as  such 
State  shall  direct,  and  all  vacancies  shall  be  filled  up  by  the 
State  which  first  made  the  appointment. 

ART.  8.  All  enlarges  of  war,  and  all  other  expenses  that  shall 
be  incurred  for  the  common  defense  or  general  welfare,  and 
allowed  by  the  United  States  in  Congress  assembled,  shall  be  j 
defrayed  out  of  a  common  treasury,  which  shall  be  supplied  by 
the  several  States,  in  proportion  to  the  value  of  all  land. within 
each  State,  granted  to  or  surveyed  for  any  person,  as  such  land 
and  the  buildings  and  improvements  thereon  shall  be  estimated, 
according  to  such  mode  as  the  United  States  in  Congress  as- 
sembled shall,  from  time  to  time,  direct  and  appoint.  The 
taxes  for  paying  that  proportion  shall  be  laid  and  levied  by  the 
authority  and  direction  of  the  legislatures  of  the  several  States 
within  the  time  agreed  upon  by  the  United  States  in  Congress- 
assembled. 

f  ART.  9.  The  United  States  in   Congress   assembled,  shall 


394  APPENDIX. 

Jiave  the  sole  and  exclusive  right  and  power  of  determining  on 
,{ '  peace  and  war,  except  in  the  cases  mentioned  in  the  sixth  arti- 
cle; of  sending  and  receiving  ambassadors;  entering  into 
treaties  and  alliances :  Provided  that  no  treaty  of  commerce 
shall  be  made  whereby  the  legislative  power  of  the  respective 
States  shall  be  restrained  from  imposing  such  imposts  and 
duties  on  foreigners  as  their  own  people  are  subjected  to,  or 
from  prohibiting  the  exportation  or  importation  of  any 
species  of  goods  or  commodities  whatsoever;  of  establishing 
rules  for  deciding  in  all  cases  what  captures  on  land  or  water 
shall  be  legal,  and  in  what  manner  prizes  taken  by  land  or 
~naval  forces  in  the  service  of  the  United  States  shall  be  divided 
or  appropriated  ;  of  granting  letters  of  marque  and  reprisal 
in  times  of  peace;  appointing  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas;  and  establishing 
(0  -courts  for  receiving  and  determining  finally  appeals  in  all  cases 
of  captures :  Provided  that  no  member  of  Congress  shall  be 
Appointed  a  judge  of  any  of  the  said  courts. 
JsThe  United  States  in  Congress  assembled,  shall  also  be 
the  last  resort  -on  appeal  in  all  disputes  and  differences  now 
subsisting,  or  that  hereafter  may  arise  between  two  or  more 
States  concerning  .boundary,  jurisdiction,  or  any  other  cause 
whatever ;  which  authority  shall  always  be  exercised  in  the 
manner  following :  Whenever  the  legislative  or  executive 
.authority  or  lawful  agent  of  any  State  in  controversy  with 
another,  shall  present  a  petition  to  Congress,  stating  the  matter 
in  question,  and  praying  for  a  hearing,  notice  thereof  shall  be 
given  by  order  of  Congress  to  the  legislative  or  executive 
authority  of  the  other  State  in  controversy,  and  a  day  assigned 
for  the  appearance  of  the  parties  by  their  lawful  agents,  who 
shall  then  be  directed  to  appoint,  by  joint  consent,  commis- 
sioners or  judges  to  constitute  a  court  for  hearing  and  deter- 
mining the  matter  in  question  ;  but  if  they  can  not  agree, 
Congress  shall  name  three  persons  out  of  each  of  the  United 
States,  and  from  the  list  of  such  persons  each  party  shall 
alternately  strike  out  one,  the  petitioners  beginning,  until  the 
number  shall  be  reduced  to  thirteen  ;  and  from  that  nurnbetf 
not  less  than  seven  nor  more  than  nine  names,  as  Congress 
shall  direct,  shall,  in  the  presence  of  Congress,  be  drawn  out 


THE    ARTICLES    OF    CONF-EDE  RATION.  395 

by  lot  ;  and  the  persons  whose  names  shall  be  so  drawn,  or 
any  five  of  them,  shall  be  commissioners  or  judges  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major  part  of 
the  judges,  who  shall  hear  the  cause,  shall  agree  in  the  deter- 
mination :  and  if  either  party  shall  neglect  to  attend  at  the 
day  appointed,  without  showing  reasons  which  Congress  shall 
judge  sufficient,  or  being  present  shall  refuse  to  strike,  the 
Congress  shall  proceed  to  nominate  three  persons  out  of  each 
State,  and  the  secretary  of  Congress  shall  strike  in  behalf  of 
such  party  absent  or  refusing;  and  the  judgment  and  sentence 
of  the  court,  to  be  appointed  in  the  manner  before  prescribed, 
shall  be  final  and  conclusive;  and  if  any  of  the  parties  shall 
refuse  to  submit  to  the  authority  of  such  court,  or  to  appear  to 
defend  their  claim  or  cause,  the  court  shall  nevertheless  proceed 
to  pronounce  sentence  or  judgment,  which  shall  in  like  manner 
be  final  and  decisive;  the  judgment  or  sentence  and  other 
proceedings  being  in  either  case  transmitted  to  Congress,  and 
lodged  among  the  acts  of  Congress,  for  the  security  of  the 
parties  concerned  :  Provided,  that  every  commissioner,  before 
he  sits  in  judgment,  shall  take  an  oath,  to  be  administered  by 
one  of  the  judges  of  the  Supreme  or  Superior  Court  of  the  • 
State,  where  the  cause  shall  be  triecf^^welLand  truly  to  hear 
and  determine  the  matter  in  question,  according  to  the  best  of 
his  judgment,  without  favor,  affection,  or  hope  of  reward  :  " 
Provided,  also,  that  no  State  shall  be  deprived  of  territory  for  ,. 
the  benefit  of  the  United  States. 

^J  All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  States,  whose 
jurisdictions,  as  they  may  respect  such  lands,  and  the  States 
which  passed  such  grants  aro  adjusted,  the  said  grants  or 
either  of  them  being  at  the  same  time  claimed  to  have  originated 
antecedent  to  such  settlement  of  jurisdiction,  shall,  on  the 
petition,  of  either  party  to  the  Congress  of  the  United  States, 
be  finally  determined,  as  near  as  may  be,  in  the  same  manner 
as  is  before  prescribed  for  deciding  disputes  respecting  territorial 
jurisdiction  between  different  States. 


United    States    in    Congress    assembled,    shall    also  mj-  <-      -> 
have  the  sole  and  exclusive  right  and  power  of  regulating  the  I 
alloy  and  value  of  coin  struck  by  their  own  authority,  or  by 
that  of  the  respective  States;  fixing  the  standard  of  weights 


396  APPENDIX. 

and  measures  throughout  the  United  States  j  regulating  the- 
trade  and  managing  all  affairs  ^vithjhe^ndians,  not  members 
7  .^Tof  HnJ  °f  the  States  ;  provided  that  the  legislative  right  of  any 
State,  within  its  own  limits,  be  not  infringed  or  violated  ; 
^"establishing  or  regulating  ^st^offices  from  one  State  to 
another,  throughout  all  the  UnitedHStates,  and  exacting  such 
postage  on  the  papers  passing  through  the  same,  as  may  be 
requisite  to  defray  the  expenses  of  the  said  office^  appoint- 
ing  all  officers  oj*  the  land  forces  in  the  service  of  the  United 
States,  excepting  regimentaroteeers  ;  appointing  all  the  officers- 
of  the  ^8'  an<^  commissionin  ail  officers  whatever  in 


^ 
the  service  of  the  United  States  ;  making  rules  for  the  govern- 

ment and  regulations  of  the  said  land  and  naval  forces,  and 
5V  l/        directing  their  operations. 

"jfThe  United  States  Jn  Congress  assembled,  shall  have 
authority  to  appoint  a  commjttgfijjp..  sit-in.lha-rfiflftffl  of  Cop- 
gress,  to  be  denominated,  "  A  Committee  of  the  States"  and  to 
consisTof  one  delegate  from  each  State  ;  and  to  appoint  such 
other  committees  and  civil  officers  as  may  be  necessary  for 
managing  the  general  affairs  of  the  United  States  under 
their  direction  ;  to  appoint  one  of  their  number  to  preside: 
Provided  that  no  person  be  allowed  to  serve  in  the  office  of 
'president  more  than  one  year  in  any  term  of  three  years  ;  to 
ascertain  the  necessary  sums  of  money  to  be  mised  for  the 
service  of  the  TTnTted  States,  and  to  appropriate  and  apply  the 
same  for  defraying  the  public  expenses  ;  to  borro\v  money  or 
emit  bills  on  the  credit  of  the  United  States,  transmitting 
every  half  year  to  the  respective  States,  an  account  of  the  sums 
of  money  so  borrowed  or  emitted  ;  to  build  and  equip  a 
navy  ;  to  agree  upon  the  number  of  land  forces,  and  to  make 
requisitions  from  each  State  for  its  quota,  in  proportion  to  the 
number  of  white  inhabitants  in  such  State,  which  requisition 
shall  be  binding  ;  and  thereupon  the  legislature  of  each  State 
shall  appoint  the  regimental  officers,  raise  the  men,  and  clothe, 
arm,  and  equip  them,  in  a  soldier-like  manner,  at  the  expense 
of  the  United  States;  and  the  officers  and^men  so  clothed, 
armed,  and  equipped,  shall  march  to  the  place  appointed,  and 
within  the  time  agreed  on  by  the  United  States  in  Congress 
assembled  ;  but  if  the  United  States  in  Congress  assembled* 


THE    ARTICLES    OF    CONFEDERATION.  397 

shall,  on  consideration  of  circumstances,  judge  proper  that  any- 
State  should  not  raise  men,  or  should  raise  a  smaller  number 
than  its  quota,  and  that  any  other  State  should  raise  a  greater 
number  of  men  than  the  quota  thereof,  such  extra  number  shall 
be  raised,  officered,  clothed,  armed,  and  equipped  in  the  same 
manner  as  the  quota  of  such  State,  unless  tile  legislature  of 
such  State  shall  judge  that  such  extra  number  can  not  be 
safely  spared  out  of  the  same,  in  which  case  tlfey  shall  raise, 
officer,  clothe,  arm,  and  equip  as  many  of  such  extra  number 
as  they  judge  can  be  safely  spared,  and  the  officers  and  men  so 
clothed,  armed,  and  equipped,  shall  march  to  the  place  ap- 
pointed, and  within  the  time  agreed  on  by  the  United  States 
in  Congress  assembled. 

&  The  United  States  in  Congress  assembled  shall  never  en- 
gage in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time 
of  peace,  nor  enter  into  any  treaties  or  alliances,  nor  comjopj^y, 
nor  reg.ulate.jLb.a .value  thereof,  nor  asc^rtain^ the  sums  and  ex- 
penses necessary  for  the  defense  and  welfare  of  the  United  States, 
or  any  of  them,  nor  emit  bills,  nor  borrow  money  on  the  credit 
of  the  United  States,  nor  appropriate  money,  nor  agree  upon 
the  number  of  vessels  of  war  to  be  built  or  purchased,  or  the 
number  of  land  or  sea  forces  to  be  raised,  nor  appoint  u.  com- 
mander in  chief  of  the  army  or  navy,  unless  nine  States  assent ' 
to  thfi|gjpft  :  nor  shall  a  question  on  any  other  point,  except  for" 
adjourning  from  day  to  day,  be  determined,  unles^JijjJijg.j^tej 
of  a  majority  of  the  United  States  in  Congress  assembled. 

*~(  The  Congress  of  the  United  States  shall  have  power  to  ad- 
adjourn  to  any  time  within  the  year,  and  to  any  place  within  the 
United  States,  so  that  no  period  of  adjournment  be  for  a. longer 
duration  than  the  space  of  six  months,  and  shall  publish  the 
journal  of  their  proceedings  monthly,  except  such  parts  thereof 
relating  to  treaties,  alliances,  or  military  operations,  as  in  their 
judgment  require  secrecy  ;  and  the  yeas  and  nays  of  the  dele- 
gates of  each  State,  on  any  question,  shall  be  entered  on  the 
journal,  when  it  is  desired  by  any  delegate;  and  the  delegates 
of  a  State,  or  ary  of  them,  at  his  or  their  request,  shall  be 
furnished  with  a  transcript  of  the  said  journal,  except  such 
parts  as  are  above  excepted,  to  lay  before  the  legislatures  of  the 
several  States. 

ART.  10.  The  committee  of  the  States,  or  any  nine  of  them, 


398  APPENDIX. 

shall  be  authorized  to  execute,  in  the  recess  of  Congress,  such  of 
the  powers  of  Congress  as  the  United  States  in  Congress  assem- 
bled, by  the  consent  of  nine  States,  shall,  from  time  to  time, 
think  expedient  to  vest  them  with  ;  provided  that  no  power  be 
delegated  to  the  said  committee,  for  the  exercise  of  which,  by 
the  articles  of  confederation,  the  voice  of  nine  States,  in  the 
Congress  of  the  United  States  assembled,  is  requisite. 

ART.  11.  Canada  acccdingio  this  confederation,  and  jcnning 
in"i  the  measures  of  the  United  States,  shall  be  admitted  into,  and 
Jf^ntitled  to  all  the  ad  vantages  of  this  union  ;  but  no.  other  colony 
•shall  be  admitted  into  the  same,  unless  such  admission  be  agreed 

— .wwrt*""*****"1*** rf*1^""***"""^^*^ 

/»  to  by  ninej^aies. 

ART.  12.  All  bills  of  credit  emitted,  moneys  borrowed,  and 
debts  contracted  by  or  under  the  authority  of  Congress,  before 
the  assembling  of  the  United  States,  in  pursuance  of  the  present 
confederation,  shall  be  deemed  and  considered  as  a  charge 
against  the  United  States,  for  payment  and  satisfaction  whereof 
the  said  United  States  and  the  public  faith  are  hereby  solemn- 
ly pledged. 

ART.  13.  Every  State  shall  abide  by  the  determination  of 
the  United  States  in  Congress  assembled,  on  all  questions  which 
by  this  confederation  are  submitted  to  them.  And  the  articles 
of  this  confederation  shall  be  inviolably  observed  by  every  State, 
and  the  union  shall  be  perpetual;  nor  shall  any  alteration  at 
any  time  hereafter  be  made  in  any  of  "them,  unless  such  altera- 
tion*^ agreed  to  in  a  Congress  of  the  United  States,  and  be 
afterward  confirmed  Jby  the  legislatures  of  every  State. 

And  whereas,  it  hath  pleased  the  great  Governor  of  the  world 
to  incline  the  hearts  of  the  legislatures  we  respectively  represent 
in  Congress  to  approve  of,  and  to  authorize  us  to  ratify  the  said 
articles  of  confederation  and  perpetual  union,  Know  ye,  that  we, 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in  the  name 
and  in  behalf  of  our  respective  constituents,  fully  and  entirely 
ratify  and  confirm  each  and  every  of  the  said  articles  of  confed- 
eration and  perpetual  union,  and  all  and  singular  the  matters 
and  things  therein  contained.  And  we  do  further  solemnly 
plight  and  engage  the  faith  of  our  respective  constituents,  that 
they  shall  abide  by  the  determination  of  the  United  States  in 


THE    ARTICLES    OF    CONFEDERATION.  399 

Congress  assembled,  on  all  questions  which  by  the  said  confed- 
eration are  submitted  to  them  ;  and  that  the  articles  thereof 
shall  be  inviolably  observed  by  the  States  we  respectively  rep- 
resent, and  that  the  union  shall  be  perpetual.  In  witness 
whereof,  we  have  hereunto  set  our  hands,  in  Congress. 

Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the  ninth 

day  of  July,  in  the  year  of  our  Lord  one  thousand  seven 

hundred  and  seventy-eight,  and  in  the  third  year  of  the  In- 
dependence of  America. 

On  the  part  and  behalf  .of  the  State  of  New  Hampshire. — Josiah 
Bartlett,  John  Wentworth,  Jr.  (August  8,  1778). 

On  the  part  and  behalf  of  the  State  of  Massachusetts  Bay. — John 
Hancock,  Samuel  Adams,  El  bridge  Gerry,  Francis  Dana,  James  Lov- 
ell,  Samuel  Holten. 

On  the  part  and  behalf  of  the  State  of  Rhode  Island  and  Provi- 
dence Plantations. — William  Ellery,  Henry  Marchant,  John  Collins. 

On  the  part  and  behalf  of  the  State  of  Connecticut. — Roger  Sher- 
man, Samuel  Huntington,  Oliver  Wolcott,  Titus  Hosmer,  Andrew 
Adams. 

On  the  part  and  behalf  of  the  State  of  New  York. — James  Duane? 
Francis  Lewis,  William  Duer,  Gouv.  Morris. 

On  the  part  and  behalf  of  the  State  of  New  Jersey. — John  With- 
erspoon,  Nath.  Scudder  (November  26,  1778). 

Oti  the  part  and  behalf  of  the  State  of  Pennsylvania. — Robert 
Morris,  Daniel  Roberdeau,  Jona.  Bayard  Smith,  William  Clingan, 
Joseph  Reed  (July  22,  1778). 

On  the  part  and  behalf  of  the  State  of  Delaware. — Thomas 
McKean  (February  12,  1779),  John  Dickinson  (May  5,  1779),  Nich- 
olas Van  Dyke. 

On  the  part  and  behalf  of  the  State  of  Maryland. — John  Hanson 
(March  1,  1781),  Daniel  Carroll  (March  1,  1781). 

On  the  part  and  behalf  of  the  State  of  Virginia. — Richard  Henry 
Lee,  John  .Banister,  Thomas  Adams,  Jno.  Harvie,  Francis  Lightfoot 
Lee. 

On  the  part  and  behalf  of  the  State  of  North  Carolina. — John 
Penn  (July  21,  J778),  Corns.  Harnett,  John  Williams. 

On  the  part  and  behalf  of  the  State  of  South  Carolina.. — Henry 
Laurens,  William  Henry  Drayton,  Jno.  Matthews,  Richard  Hutson, 
Thos.  Hey  ward,  Jr. 

On  the  part  and  behalf  of  the  State  of  Georgia. — Jno.  Walton 
(July  24,  1778),  Edwd.  Telfair,  Edward  Langworthy. 


INDEX 


INDEX. 


ACCOUNT, 

of  public  money,  108. 

to  be  published,  108. 
ADJOURN, 

when  either  house  of  Congress  may,  1 2. 

President  may,  when  Congress  can  not  agree,  258. 
ADMIRALTY, 

jurisdiction  in,  265. 

extent  of,  268. 

distinct  from  power  to  regulate  commerce,  269. 

not  limited  to  jurisdiction  in  England,  270. 

when  voyage  begins  and  ends  in  the  State,  270. 

cases  of  tort,  270. 

jurisdiction  not  a  cession  of  the  soil,  270. 

not  include  power  to  regulate  fisheries,  271. 

a  grant  to  Congress  alone,  271. 

Congress  may  limit  jurisdiction  in,  271. 

Congress  may  grant  jury  trial,  271. 

a  State  can  not  create  a  maritime  lien,  271. 

a  State  can  not  regulate  jurisdiction  in,  272. 
ALIENS, 

not  eligible  to  the  office  of  president,  245. 

naturalization  of,  67. 
AMBASSADORS, 

appointment  of,  254. 

President  to  receive,  258. 

judicial  power  extends  to,  265. 

jurisdiction  of  Supreme  Court  over,  274. 

jurisdiction  of  inferior  courts  over,  276. 


4°4  INDEX. 

AMENDMENTS, 

how  made  to  the  Constitution,  310. 

to  bills,  13. 

APPELLATE  JURISDICTION.     See  JUDICIAL    POWER, 
APPOINTMENT, 

of  officers  in  the  militia,  17. 

of  electors,  243. 

of  senators  during  vacancy  of  legislatures,  9. 

of  officers,  254. 

Congress  can  not  make,  256.  •» 

when  heads  of  department  may' make,  254,  256. 

when  complete,  256. 

during  recess,  258. 

when  vacancy  occurs  during  session  of  Senate,  257. 
APPROPRIATION, 

for  army  limited  to  two  years,  16. 

no  money  drawn  from  treasury  except  by,  108. 
ARMS,' 

Congress  can  not  infringe  right  to  keep,  342. 
ARMY, 

Congress  may  raise,  16, 

power  to  raise  unrestricted,  88. 

may  be  raised  by  draft,  89. 

States  can  not  raise,  89. 

States  may  give  bounties,  89. 

Congress  may  make  rules  to  govern,  16. 

President  commander-in-chief  of,  246. 

punishment  of  persons  in,  345. 
ARREST, 

members  of  Congress  exempt  from,  12. 
ATTAINDER, 

Congress  can  not  pass,  103. 

State  can  not  pass,  108. 

definition  of,  103,  113. 

what  are  bills  of,  113. 

bills  of  can  not  be  passed  indirectly,  113. 

BAIL, 

excessive  not  to  be  required,  361. 


INDEX.  405 

BANKRUPTCY, 

Congress  may  establish  uniform  laws,  16. 

definition  of,  69. 

not  limited  to  provisions  of  English  laws,  70. 

not  limited  to  particular  persons,  70. 

voluntary  bankruptcy,  70. 

impairing  obligation  of  contracts,  70. 

selection  of  courts,  71. 

uniform  laws  required,  71. 

exemptions  law,  71. 

State  insolvent  laws  superseded,  72. 

State  court  retains  pending  cases,  74. 

State  laws  relating  to  corporations,  74. 

State  laws  relating  to  release  from  imprisonment,  75. 

assignments  for  benefit  of  creditors,  76. 

repeal  revives  State  law,  79. 
BILLS, 

to  raise  revenue  must  originate  in  the  House,  13. 

to  be  signed  by  President,  13. 

when  become  law,  14. 

order  resolution  or  vote  to  be  same  as,  15. 
BILLS  OF  CREDIT, 

State  can  not  emit,  108. 

what  are,  108. 

bank  bills  are  not,  1 10. 

CENSUS, 

to  be  taken  every  ten  years,  8. 

capitation  and  direct  taxes  laid  in  proportion  to,  104. 
CITIZENS, 

alone  eligible  to  office  of  president,  245. 

how  long  must  be  to  be  senator,  9. 

judicial  power  extends  to  controversies  between  between, 

265. 

entitled  to  privilege  and  immunities  in  other  States,  286. 

to  what  privileges  entitled,  286. 

who  are,  290,  371. 

taxation  in  other  States,  292. 


406  INDEX. 

CITIZENS— continued. 

right  to  sue,  293. 

right  to  catch  oysters,  294. 

widows  of,  295. 

no  State  to  abridge  immunities  of,  371. 
COIN, 

Congress  may  coin  money,  16. 

no  State  can  coin  money,  108. 

no  State  can  make  anything  but  coin  a  legal  tender,  108. 
COMMERCE, 

Congress  may  regulate,  16. 
v  extent  of  power,  26. 
v  rivers,  34. 

how  far  power  of  Congress  exclusive,  36. 
"  State  legislation,  37. 
v  pilots,  41. 
<•  State  taxation,  42. 
-transportation  of  persons,  49. 
i  bridges,  50. 

dams,  54. 

ferries,  54. 

persons  engaged  in  subject  to  State  laws,  56. 

internal,  56. 
,  with  the  Indians,  58. 

duty  of  tonnage  prohibited,  231,  237. 

M  no  preference  to  port  of  one  State  over  another  allowed,! 06. 
COMPENSATION, 

of  senators,  12. 

of  President,  245. 

of  judges,  259, 

for  private  property  taken  for  public  use,  345. 
CONFISCATION, 

Congress  may  provide  for,  whether  war  is  civil  or  foreign, 

87. 
CONGRESS, 

legislative  power  vested  in,  7. 

consist  of  a  Senate  and  House  of  Representatives,  7; 

manner  of  electing  members  of,  10. 

when  to  assemble,  10. 


INDEX.  407 

CONGRESS — continued. 

judge  of  the  qualification  of  members,  10. 

each  house  to  determine  the  rules  of  its  proceedings,  TO. 

each  house  may  punish  for  contempt,  10. 

to  keep  journal  of  its  proceedings,  12. 

adjournment  of,  12,  258. 

powers  of,  15. 

to  lay  taxes,  15,  21. 

to  borrow  money,  16,  25. 

to  regulate  commerce,  16,  26. 

to  establish  rule  of  naturalization,  16,  67. 

to  establish  bankrupt  laws,  16. 

to  coin  money,  16,  79. 

to  punish  counterfeiting,  16,  81. 

to  establish  post  offices  and  post  roads,  1 6,  82. 

to  grant  copyrights,  16,  85. 

to  grant  patents,  16,  85. 

to  create  inferior  tribunals,  16. 

to  punish  piracies  and  other  felonies,  16,  86. 

to  declare  war,  16,  86. 

to  raise  armies,  16,  88. 

regulate  military  forces,  1 6,  90. 

to  call  forth  the  militia,  16,  90. 

to  govern  the  militia,  16,  91.  • 

to  legislate  for  the  District  of  Columbia,  17,  92. 

to  govern  pkces  purchased    with    consent  of  legislature, 

17,93- 

to  make  all  necessary  laws,  17,  95. 

may  prohibit  the  importation  of  persons,  191. 

may  suspend  the  writ  of  habeas  corpus,  191. 

can  not  pass  bill  of  attainder,  103. 

can  not  pass  ex  post  factu  law,  103. 

may   consent   to  officers   receiving  presents  from  foreign 

States,  108. 

may  allow  State  to  lay  duties  on  imports,  231. 
may  allow  to  lay  duty  of  tonnage,  231. 
may  allow  State  to  keep  troops,  231. 
may  allow  State  to  enter  into  contract  with  another  State, 

or  with  a  foreign  power,  231. 


408  INDEX. 


CONGRESS— 

may  determine  time  of  choosing  electors,  245. 

may  provide  for  vacancy  in  the  office  of  president,  245. 

may  provide  for  appointment  of  inferior  officers,  254. 

receive  information  from  president,  258. 

may  regulate  appellate  jurisdiction  of  the  Supreme  Court, 
274. 

may  provide  for  trial   of  crimes  not  committed  within  a 
State,  279. 

may  provide  for  the  proof  of  records  in  other  States,  283. 

admit  new  States,  298. 

dispose  of  territory,  299. 

\y     propose  amendments  to  Constitution,  310. 
CONTRACTS, 

Congress  may  impair  obligation  of,  20. 

State  can  not  impair  obligation  of,  108. 

definition  of,  1  20. 

what  laws  do  affect,  1  22. 

what  are  within  protection,  126. 

with  States,  128. 

impairing,  128. 

what  statutes  are  contracts,  132. 

executed,  137. 

registration  laws,  141. 

confirmatory  statute,  141. 

marriage,   142. 

public  officers,  143. 

license,  144. 

taxes,  145. 

bank  notes,  147. 

laws  giving  validity  to,  148. 

municipal  ordinances,  149. 

acts  not  contracts,  150. 

statutes  which  do  impair  contracts,  151. 

sale  of  property  free  from  incumbrances,  152. 

interest,  152. 

State  insolvent  laws,  155. 

charters,  162. 

acts  which  impair  charters,  167. 


INDEX.  409 

CONTRACTS— continued. 

charters  of  banks,  169. 

charters  of  bridge  companies,  170. 

charters  of  turnpike  companies,  171. 

charters  of  railroad  companies,  171. 

taxation  of  corporations,  172. 

eminent  domain  against  corporations,  179. 

police  power  over  corporations,  1 80. 

amendment  of  charters,  187. 

effect  of  reserved  power  to  alter  charters,  188. 

effect  of  amendments  on  stockholders,  195. 

rights  of  stockholders  where  power  is  reserved  to  alter,  2O2. 

public  corporations,  204. 

remedies,  208. 

appeal,  224. 

new  trial,  225. 

exemptions^  225. 

stay  laws,  227. 

statute  of  limitations,  229. 

who  may  object,  230. 
COPYRIGHT, 

power  to  grant  to  author,  16. 

State  can  not  interfere  with,  83. 
CORPORATIONS, 

obligations  of  charter  can  not  be  impaired,  162. 

construction  of  charter,  166. 

statutes  affecting  charter  void,  167. 

bank  charters,  169. 

bridge  companies,  I  70. 

turnpike  companies,'  171. 

railroad  companies,  171. 

taxation  of,  172. 

taking  property  of  for  public  uses,  1 79. 

police  power,  1 80. 

amendment  of  charter,  187. 

effect  of  reserved  power  to  alter,  1 88. 

effect  of  amendment  on  stockholders,  195. 
27 


4IO  INDEX. 

CORPORATIONS— continued. 

effect  on  stockholders  of  reserved  power  to  alter  charters, 

202. 

public  corporations,  204. 
COUNSEL, 

accused  has  right  to  assistance  of,  356. 
COUNTERFEITING, 

Congress  may  provide  for  punishment  of,  16. 

what  acts  State  may  punish,  8  I. 
COURTS.     See  JUDICIAL  POWER. 
CRIMES, 

when  indictment  necessary,  345,  346. 

trial  by  jury,  279. 

where  tried,  279. 

accused  not  compellable  to  testify,  345. 
.  rights  of  accused,  356. 

cruel  punishments  prohibited,  361. 

may  be  punished  by  involuntary  servitude,  369. 

surrender  of  fugitives  from  justice,  395. 

DEBT, 

validity  of  public  not  to  be  questioned,  372. 
confederate,  not  to  be  assumed,  372. 
4  of  United  States  Congress  to  pay,  15. 
State  can  not  make  anything  exceptg  oldand  silver  a  ten- 
der in  payment  of,  108. 
DISTRICT  OF  COLUMBIA, 

exclusive  jurisdiction  over,  I  7. 
what  acts  for  valid,  92. 
DUTIES.     See  TAXES. 

ELECTIONS, 

of  representatives,  7. 
of  senators,  9. 

in  case  of  vacancy  in  representation,  8. 
of  president  and  vice-president,  243. 
how  votes  by  electors  taken,  367. 

Congress  may  regulate,  of  senators  and  representatives,  I  o. 
each  house  judge  of  its  own,  10. 

no  abridgment  of  right  to  vote  on  account  of  race  or  color, 
379- 


INDEX.  411 

* 

ELECTORS, 

appointment  of,  243. 

who  disqualified  to  be,  243. 

mode  of  voting,  367. 

transmission  of  vote  of,  367. 
EMINENT  DOMAIN, 

does  not  impair  obligation  of  contracts,  i  79. 

over  franchise  and  property  of  corporations,  179. 

no  exercise  of  without  compensation,  345. 

State  can  not  exercise  for  United  States,  356. 
EXCISE.      See  TAXES. 
EXPORTS, 

no  tax  on,  106. 

State  can  not  tax,  231. 
EX  POST  FACTO  LAW  S, 

Congress  can  not  pass,  103. 

State  can  not  pass,  108. 

what  are,  1 14. 

regulating  criminal  proceedings,  116. 


FELONY, 

Congress  may  punish  when  committed  on  the  high  seas,  16, 

members  of  Congress  arrested  for,  12. 

fugitives  from  justice  delivered  up,  295. 
FINES, 

excessive  not  to  be  imposed,  361. 
FORTS, 

Congress  to  exercise  exclusive  legislation  over,  17. 

extent  of  jurisdiction  over,  93. 
FUGITIVES  FROM  JUSTICE, 

to  be  surrendered,  295. 

what  crimes  surrendered  for,  296. 

demand  for  surrender  of,  297. 

State  laws,  297. 


GRAND  JURY, 

when  indictment  by  necessary,  345. 


412  INDEX. 

HABEAS  CORPUS, 

when  writ  of,  suspended,  101. 

State  court  can  not  issue  for  person  held  under  Federal 

authority,  334. 
HEADS  OF  DEPARTMENTS, 

President  may  require  to  give  opinion  in  writing,  246. 
appointment  of  inferior  officers  may  be  vested  in,  254. 
HOUSE  OF  REPRESENTATIVES, 
Congress  consists  of  Senate  and,  7. 
when  members  of,  chosen,  7. 
qualifications  of  electors,  7. 
who  may  be  representatives,  7. 
how  representatives  apportioned,  7. 
how  vacancies  in  filled,  8. 
choose  speaker  and  other  officers,  9. 
has  sole  power  of  impeachment,  9. 
Congress  may  regulate  elections  of  representatives,  10. 
when  to  meet,  10. 

judge  of  the  election  of  its  own  members,  10. 
what  constitutes  a  quorum,  10. 
may  compel  the  attendance  of  absent  members,  10. 
may  adopt  rules  of  proceeding,  10. 
power  to  punish  members,  10. 

expel  members,  10. 

punish  contempt,  10. 
to  keep  a  journal,  12. 
when  yeas  and  nays  entered  on,  12. 
power  to' adjourn,  12. 
compensation  of,  12. 
members  privileged  from  arrest,  12. 

not  liable  for  debate,  12. 

not  eligible  to  certain  offices,  13. 
sole  right  to  originate  bills  for  revenue,  13. 
when  may  elect  President,  367. 
when  to  be  convened  by  President,  258. 
when  to  be  adjourned  by  President,  258, 

IMMUNITIES.     See  CITIZENS. 


INDEX.  413 

IMPEACHMENT, 

House  of  Representatives  has  sole  power  of,  9. 

Senate  has  sole  power  to  try,  9. 

who  presides  on  trial  of,  9. 

what  vote  necessary  for  conviction,  9. 

judgment  in  cases  of,  10. 

party  liable  to  indictment  after,  10. 

not  subject  of  pardon,  246. 

for  what  crimes  officers  may  be  removed,  259. 

no  trial  by  jury,  279. 
IMPOSTS.     See  TAXES. 
INDIANS, 

Congress  may  regulate  commerce  with,  15. 

what  commerce  with  subject  to  regulation  by  Congress,  58* 

commerce  with  when  in  State,  60. 

Congress  may  punish  offenses  by,  60. 

jurisdiction  of  crimes  committed  by,  61. 

when  State  laws  void,  62. 

rights  of,  64. 

when  citizens,  371. 
INDICTMENT, 

when  necessary,  345. 
INSOLVENT  LAWS, 

State  may  pass,  72. 

suspended  by  bankrupt  law,  73. 

can  not  impair  obligation  of  contract,  155. 

may  affect  subsequent  contracts,  155. 

can  not  affect  citizens  of  other  States,  157. 
INSPECTION    LAWS, 
State  may  pass,  231. 
INSURRECTION, 

Congress  may  suppress,  16. 

Congress  to  protect  State  against,  308. 

JEOPARDY, 

no  person  twice  put  in  for  same  offense,  345. 

when  second  trial  allowed,  347. 
JOURNAL,  v 

each  house  to  keep,  12. 


4H  INDEX. 

JOURNAL— continued. 

when  yeas  and  nays  entered  on,  12. 

when  objections  of  President  to  be  entered  on,  13. 
JUDGES, 

President  may  nominate,  254. 

hold  office  during  good  behavior,  259. 

compensation  not  be  diminished,  259. 

bound  by  Constitution,  310. 
JUDGMENTS.     See  RECORDS. 
JUDICIAL  POWER, 

in  what  courts  to  be  vested,  259. 

limited  jurisdiction  of  Federal  courts,  261. 

territorial  courts,  262. 

can  not  be  vested  in  State  courts,  262. 

not  affected  by  State  laws,  263. 

removal  from  State  courts,  263. 

to  what  causes  extends,  265. 

cases  under  acts  of  Congress,  266. 

cases  in  admiralty,  268. 

over  foreign  nations,  272. 

how  far  jurisdiction  of  Federal  courts  exclusive,  272. 

jurisdiction  of  Supreme  Court^74. 
JURY, 

trial  of  crimes  by,  279. 

indictment  by  grand,  345. 

from  what  district  taken  in  case  of  crimes,  356. 

trial  by,  preserved  at  common  law,  357. 

MARQUE  AND  REPRISAL, 

Congress  may  grant  letters  of,  16. 

State  can  not  grant,  108. 
MARRIAGE, 

not  a  contract,  142. 

rights  arising  from  not  protected,  142. 
MARTIAL  LAW, 

when  allowed,  247. 
MILITIA, 

Congress  may  call  forth,  16. 

provide  for  organizing,  16. 


INDEX.  415 

MILITIA— continued. 

State  may  appoint  officers  of,  17. 
President  commander  in  chief  of,  246. 
necessity  of,  342. 

when  offenses  in  tried  without  indictment,  345. 
MONEY, 

Congress  has  power  to  borrow,  16. 

coin,  16. 

appropriation  of,  limited  to  two  years,  16. 
not  drawn  from  treasury  without  appropriation,  108. 
State  can  not  coin,  108. 

NATIONAL  BANK, 

Congress  may  create,  98. 

State  may  punish  crimes  against,  273. 

counterfeiting  notes  of,  274. 
can  not  tax,  325. 
NATURALIZATION, 

Congress  may  regulate,  16. 
who  are  subjects  of,  67. 
State  laws,  68. 

NAVY, 

Congress  may  provide,  16. 

make  rules  for  government  of,  16. 
trial  of  persons  in,  345. 
President  commander  in  chief  of,  246. 
NOBILITY, 

Congress  can  not  grant  title  of,  108. 
State  can  not  grant  title  of,  108. 

OATH, 

in  case  of  impeachment,  9. 

of  President,  245. 

to  suppoVt  Constitution,  339. 

no  warrant  to  issue  without,  343. 

OBLIGATION  OF  CONTRACTS.     See  CONTRACTS. 
OFFICERS, 

when  President  may  appoint,  254. 

when  others  may  appoint,  254. 


416  INDEX. 

OFFICERS— continued. 

when  appointment  complete,  256. 

removal  of,  257. 

resignation,  257. 

appointment  during  recess,  258. 

removal  by  impeachment,  259. 

PARDONS, 

President  may  grant,  246. 

different  kinds  of,  252.. 

to  what  extends,  252. 

not  subject  to  legislative  control,  252. 

effect  of,  253. 

recalled  before  delivery,  253. 
PATENTS, 

Congress  may  regulate,  16. 

grant  for  thing  in  public  use,  83. 
extended  term,  84. 

State  can  not  regulate,  85. 
PIRACIES, 

Congress  may  punish,  16. 
POLICE  POWER, 

over  corporations,  180. 

of  State,  320. 
PORTS, 

no  preference  to,  in  one  State  over  that  of  another,  106. 
POST  OFFICES, 

Congress  may  establish,  16. 

extent  of  power,  82. 
PRESENT, 

officers  not  allowed  to  accept  from  king,  prince  or  foreign 

State,  1 08. 
PRESIDENT, 

chief  justice  presides  on  impeachment  of,  9.  • 

all  bills  to  be  presented  to,  13. 

orders,  resolutions  and  votes  to  be  presented  to,  15. 

executive  power  vested  in,  242. 

electors  of,  appointed  by  State,  243. 

Congress  to  determine  the  time  of  choosing  electors,  245. 


INDEX.  417 

PRESIDENT— continued. 

who  is  eligible,  245. 

who    may   act    in    case  of  removal,  death,  resignation    or 
inability,  245. 

compensation  of,  245. 

oath,  245. 

to  be  commander  in  chief,  246. 

require  written  opinion  from  heads  of  departments,  246. 

may  grant  pardons,  246. 

military  power,  246. 

when  may  govern  by  martial  law,  247. 

power  over  conquered  territory,  249.* 

power  over  rebellious  State,  250. 

may  make  treaties,  254. 

may  appoint  officers,  254. 

fill  vacancies  during  recess  of  Senate,  258. 

may  recommend  measures,  258. 

may  convene  Congress,  258. 

when  may  adjourn  Congress,  258. 

to  receive  public  ministers,  258. 

remove  from  office  on  impeachment,  259. 

mode  of  casting  votes  for,  367. 

mode  of  counting  votes  for,  367. 

mode  of  electing  when  electors  fail  to  elect,  367. 
PRESS, 

Congress  can  not  make  any  law  abringing  the  freedom  of, 

342. 

PRIVATE  PROPERTY.     See  EMINENT  DOMAIN. 
PRIVILEGES  AND  IMMUNITIES.     See  CITIZENS. 

QUORUM, 

what  constitutes,  10. 

what  constitutes  in  choosing  President,  367. 
what  constitutes  for  the  election  of  Vice-President,  368, 

t 

REBELLION, 

Congress  may  suppress,  86. 
confiscation  of  property  of  rebels,  87. 

28 


418  INDEX. 

REBELLION — continued. 

President  may  appoint  Governor  for  rebellious  State,  250. 

Congress  may  reorganize  rebellious  States,  309. 

a  State  can  not  secede,  328. 

legal  effect  of  secession,  230. 
RECORDS, 

full  faith  and  credit  given  to  in  other  States,  283. 

effect  merely  as  evidence,  284. 

a  foreign  judgment  ranks  merely  as  simple  contract,  284. 

what  State  laws  valid,  285. 
RELIGION, 

Congress  can  make  no  law  respecting  establishment  of,  342. 

no  religious  test  required  as  qualification  to  office,  339. 
REMEDY.     See  CONTRACTS. 

REPRESENTATIVES.     See  HOUSE  OF  REPRESENTATIVES. 
REPRIEVES.     See  PARDON. 
REPRISAL.     See  MARQUE  AND  REPRISAL. 
REPUBLICAN  GOVERNMENT, 

Congress  must  guarantee  to  every  State,  308. 
RESOLUTION, 

when  to  be  approved  by  the  President,  15. 
RIGHTS, 

to  religious  freedom,  339,  342. 

to  freedom  of  speech,  342. 

to  assemble  peaceably,  342. 

to  petition  for  redress  of  grievances,  342. 

to  bear  arms,  342. 

soldiers  not  to  be  quartered  on  citizen  without  consent,  343. 

against  unreasonable  searches  and  seizures,  343. 

to  warrant  under  oath,  343. 

to  indictment  by  grand  jury,  345. 

not  to  be  twice  put  in  jeopardy,  345. 

not  compellable  to  be  witness  against  himself,  345. 

not  to  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law,  345,  371. 

property  not  to  be  taken  for  public  use  without  compensa- 
tion,  345. 

of  criminal  to  speedy  and  public  trial,  356. 

to  trial  in  district  where  crime  was  committed,  279,  356. 


INDEX.  419 

RIGHTS— continued. 

to  be  informed  of  the  nature  and  cause  of  the  accusation, 

356. 

to  be  confronted  with  witnesses,  356. 
to  compulsory  process  to  obtain  witnesses,  356. 
to  assistance  of  counsel,  356. 
to  trial  by  jury  at  common  law,  357. 
to  moderate  bail,  361. 
to  moderate  fine,  361. 
to  moderate  punishment,  361. 
to  freedom,  369. 

to  privileges  and  immunities,  286,  371. 
to  equal  protection  of  the  laws,  371. 
to  vote,  379. 
to  trial  by  jury  in  criminal  eases,  279. 

SEARCHES, 

people  protected  against  unreasonable,  343. 
SECESSION.     See  REBELLION. 
SEIZURES, 

people  protected  against  unreasonable,  343. 
SENATE, 

Congress  consists  of,  and  House  of  Representatives,  7. 

number  of  senators,  9. 

how  senators  chosen,  9. 

division  of  senators  into  classes,  9. 

mode  of  filling  vacancies,  9. 

qualification  of  senator,  9. 

who  is  president  of  senate,  9. 

choosing  officers  of,  9. 

when  president  pro  tempore  chosen,  9. 

sole  power  to  try  impeachment,  9. 

time,  place  and  manner  of  choosing  senators,  10. 

when  to  assemble,  10. 

judge  the  election  of  its  own  members,  TO. 

what  constitutes  a  quorum,  IO. 

power  to  expel  a  member,  10. 

power  to  punish  contempt,  10. 


42O  INDEX. 

SENATE—  continued. 

to  keep  a  journal,  12. 

when  yeas  and  nays  entered  on  journal,  12. 

when  journal  published,  12. 

can  not  adjourn  without  consent  of  representatives,  12. 

compensation  of  senators,  12. 

privileged  from  arrest,  12. 

senators  not  liable  for  speech  or  debate,  12. 

senator  can  not  be  appointed  to  office  created  during  his 
term,  13. 

officer  can  not  be  senator,  13. 

can  not  originate  bill  for  revenue,  13. 

bills  to  be  presented  to  President,  13. 

resolutions  to  be  presented  to  President,  I  5. 

no  State  to  be  deprived  of  its  suffrage  in,  310. 

votes  of  electors  to  be  transmitted  to  president  of,  367. 

who  can  not  be  senator,  72. 

senators  to  take  oath  to  support  the  Constitution,  329. 
SLAVERY, 

abolished,  369. 

slaves  included  in  representation,  7. 

importation  of  slaves  prohibited,  101. 

return  of  fugitive  slaves,  298. 
SOLDIER, 

not  to  be  quartered  on  citizen  in  time  of  peace,  343. 
SPEECH, 

when  senators  and  representatives   not  to   be  questioned 
for,  12. 

Congress  can  not  abridge  freedom  of,  342. 
STATE, 

elect  representatives,  7. 

representative  must  be  inhabitant  of,  7. 

apportionment  of  representatives  among,  7. 

each  State  entitled  to  one  representative,  8. 

mode  of  filling  vacancies  in  representation  of,  8. 

choosing  senators  from,  9. 

senator  must  be  inhabitant  of,  9. 

mode  of  filling  vacancies  among  senators,  9. 


INDEX.  421 

STATE— continued. 

exports  from,  not  liable  to  tax,  106. 

no  preference  to  be  given  to  ports  of,  106. 

can  not  make  a  treaty,  108. 

can  not  grant  letters  of  marque  and  reprisal,  108. 

can  not  coin  money,  108. 

can  not  emit  bills  of  credit,  108. 

can  not  make  anything  but  gold  and  silver  a  legal  tender, 

108. 

can  not  pass  bill  of  attainder,  108. 
can  not  make  ex  post  facto  law,  108. 
can  not  impair  the  obligation  of  contracts,  108. 
can  not  grant  title  of  nobility,  108. 
can  not  lay  duty  on  imports  or  exports,  231. 
can  not  lay  duty  of  tonnage,  231. 
can  not  keep  troops  or  ships  of  war,  231. 
can  not    enter  into  compact    with  other  State  or  foreign 

power,  231. 

can  not  engage  in  war,  231. 
shall  appoint  electors,  243. 

to  what  controversies  judicial  power  extends,  265. 
original  jurisdiction  of  Supreme  Court,  274. 
full  faith  given  to  acts  of,  283. 
privileges  and  immunities  of  citizens  of,  286. 
surrender  of  fugitives  from  justice,  295. 
admission  of  new,  298. 
republican  government  guaranteed  to,  308. 
not  deprived  of  suffrage  in  Senate,  310. 
bound  by  Constitution,  315. 
when  powers  of,  superseded,  316. 
police  powers  preserved,  320. 
when  taxation  by,  restricted,  321. 
can  not  secede,  328. 
can  not  interfere  with  operation  of  Federal  Government, 

334- 

officers  must  take  oath  to  support  the  Constitution,  329. 
powers  reserved  to,  302. 
can  not  be  sued  in  a  Federal  court,  365. 
SUPREME  COURT.     See  JUDICIAL  POWER. 


422  INDEX. 

TAXES, 

Congress  may  lay,  15. 

how  bills  for  raising  must  originate,  I  3. 

how  direct  taxes  to  be  apportioned,  7. 

in  the  District  of  Columbia,  92. 

on  importation  of  persons,  101. 

mode  of  levying  capitation  or  direct  tax,  104. 

on  exports  prohibited,  106. 

State  can  not  tax  commerce,  42. 

State  can  not  tax  imports  or  exports,  23  i. 

State  can  not  lay  any  duty  of  tonnage,  23  I. 

State  power  concurrent  with  Federal  Government,  321. 

State  can  not  tax  agencies  of  Federal  Government,  322. 

power  of  State  over  territory,  301. 

State  may  contract  not  to  levy,  145. 

when  on  corporation  by  State  valid,  172. 
TENDER, 

State  can  not  make  anything  but  gold  and  silver.,  108. 

Congress  may  make  notes  legal  tender,  25,  87. 
TERRITORY, 

Congress  to. legislate  for,  17. 

Congress  may  acquire,  299. 

Congress  may  make  regulations  for,  299. 

power  of  State  over,  301. 

power  of  Congress  in  legislating  for,  303. 

establishment  of  courts  in,  303. 

establishment  of  government  for,  303. 
TEST, 

no  religious,  required  as  qualification  to  office,  339. 
TONNAGE, 

no  State  can  lay  duty  of,  231. 

what  is,  237. 

charge  for  wharfage,  238. 

fees  to  harbor  master,  239. 

taxation  of  vessels,  240. 
TREASON, 

senator  or  representative  may  be  arrested  for,  12. 

removal  from  office  on  conviction  of,  259. 


INDEX.  423 

TREASON— continued. 

definition  of,  280. 

Congress  may  declare  punishment  of,  282. 

not  to  work  corruption  of  blood,  282. 

surrender  of  fugitive  charged  with,  295. 
TREATY, 

President  may  make,  254. 

judicial  power  extends  to  cases  arising  under,  265. 

the  supreme  law,  310. 

no  State  can  enter  into,  108. 


VACANCIES, 

in  House  of  Representatives,  how  filled,  8. 

in  Senate,  how  filled,  9. 

President  may  fill  that  happen  in  recess  of  Senate,  258. 
VETO  POWER.     See  PRESIDENT. 
VICE-PRESIDENT, 

President  of  Senate,  9. 

when  may  vote,  9. 

when  Senate  may  choose  a  president  pro  tempore,  9. 

chosen  for  four  years,  242. 

mode  of  electing,  367. 

electing  when  electors  fail  to  elect,  368. 

who  is  ineligible,  369. 

when  to  act  as  President,  245. 

removed  by  impeachment,  259. 
VOTE, 

each  senator  has  one,  9. 

when  Vice-President  may,  9. 

when  taken  by  yeas  and  nays,  14. 

of  electors,  367. 

of  House  of  Representatives  in  electing  President,  367. 

diminution  of  representatives,  when  right  is  denied,  371. 

right  not  to  be  abridged  on  account  of  race,  color  or  pre- 
vious condition,  379. 


424  INDEX. 

WAR, 

Congress  may  declare,  16. 
suppress  rebellion,  86. 

powers  incidental  to,  87. 
WARRANTS, 

must  be  under  oath,  343. 
WEIGHTS, 

Congress  may  regulate,  16. 
WITNESS, 

no  person  compellable  to  be  against  himself,  345. 

right  to  be  confronted  by,  356. 

compulsory  process  to  obtain,  356. 

how  many  necessary  to  convict  of  treason,  280. 


YEAS  AND  NAYS,    . 

when  entered  on  journal,  1 2. 
on  passage  of  bill  over  veto,  14. 


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